Case No. VSO-0133, 26 DOE ¶ 82,782 (H.O. Wieker July 2, 1997)

For ful history of this case, and links to other cases, click here.

* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX's.

July 2, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:January 31, 1997

Case Number:VSO-0133

This Opinion concerns the eligibility of xxxxxxxxxxxxxxx (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 [his] 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 information in the possession of the DOE indicates the individual has engaged in unusual conduct which tends to show that he is "not honest, reliable or trustworthy; or which furnishes reason to believe that [he] may be subject to pressure, coercion, exploitation, or duress which may cause [him] to act contrary to the best interests of the national security." Such conduct constitutes a security concern pursuant to 10 C.F.R. § 710.8(l) (Criterion L).

The individual requested a Hearing. The DOE 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.

Six witnesses testified at the Hearing. Two witnesses were called by the DOE Office. The first was a DOE security specialist. The second was a DOE consulting psychiatrist. The individual called four witnesses: (i) his mother, (ii) his brother, (iii) his shift supervisor, and (iv) himself.

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 provides "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 demonstrate 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. See Personnel Security Hearing, Case No. VSO-0108, 26 DOE ¶ 82,764 (1996) (financial irresponsibility); Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,791 (1996) (failure to file tax returns). The Notification Letter referred to the following six actions or activities engaged in by the individual as raising a concern that the individual is not honest, reliable or trustworthy:

1. The individual failed to divulge his 1971 arrest for shoplifting during a psychiatric evaluation.

2. The individual has a poor driving record. He lost his license due to traffic violations in 1980 and 1995. Despite the 1995 loss of his license, the individual continued to drive. During the individual's PSI [Personnel Security Interview] he indicated he was trying to avoid purchasing the automobile insurance required by state law.

3. The individual has unsatisfied financial obligations including: (i) failure to pay child support to two prior families, (ii) failure to file his 1995 income tax return, (iii) failure to pay rent, and (iv) failure to pay significant credit card debt.

4. When called for his PSI, the individual could not be located. When asked where he had been, the individual stated that he was out of compliance with the dosimeter requirements and had to take another class or "some nonsense" before he could resume his job duties at his assigned location.

5. The individual failed to comply with three court orders. The first court order required the individual to participate in 18 months of anger counseling. The second court order required community service. The final court order was a restraining order prohibiting the individual from having contact with his second wife.

6. The individual waited 29 days before notifying the DOE of his 1995 arrest for failure to have automobile insurance. Thus, the individual failed to follow the DOE security requirement of notifying the security office within five working days of an arrest.

At the Hearing the DOE security specialist summarized in the following way the reasons she believes that the individual's unusual behavior is a security concern under Criterion L:

Basically the security clearance process as a whole is based on trust. We have to determine whether an individual can be trusted to protect the information that they may come into contact with at [the DOE Site] or in their position anywhere in the complex where they have a clearance. We utilize past conduct as kind of a gauge as to how someone may act in the future. In the individual's case there are numerous items listed here where, because of past conduct, we're not sure how we can predict how he'll act in the future.

Transcript of Personnel Security Hearing (hereinafter Transcript) at 19.

The individual has indicated that the facts described in the Notification Letter are correct. The individual has submitted five documents to demonstrate that he has recently taken action to resolve certain of his problems. I interpret those documents as an attempt to show rehabilitation. In addition the individual has provided character witnesses and has testified that he is not a security risk.

A. Evaluation of Individual's Rehabilitation Evidence

The individual has submitted documents indicating the steps he has taken to deal with the problems described in the Notification Letter. The five documents he submitted are:

A. Copy of a recent automobile insurance bill.

B. Copy of a driver's license issued in November 1996.

C. Copy of a community service attendance time sheet.

D. Re-referral statement from county court which appears to indicate that the individual is attempting to comply with the county court's requirement of anger counseling.(1)

E. Billing statement from H&R Block indicating its charge for preparation of his 1995 and 1996 federal income tax returns.

During the Hearing both the individual and his mother testified that the individual is now living in his mother's home. Transcript at 42. His mother testified that living with her has provided him with a "direction in his life" and a "sense of security" that has permitted him to deal with his problems. Transcript at 46. The individual testified that his mother purchased a used truck for him because the old truck would not pass inspection. Transcript at 98. Finally the individual testified that his mother paid the $2,293, which the federal income tax returns prepared by H&R Block for 1995 and 1996 indicated he owed. Transcript at 120.

Obtaining automobile insurance, fulfilling the community service required for driving without liability insurance, purchasing a truck that will pass inspection and obtaining a driver's license are responsible actions. These actions indicate that he will be in compliance with state requirements that he previously violated. Furthermore, if he has in fact filed his 1995 and 1996 federal income tax returns and paid the taxes owed, he will have taken steps to comply with federal tax requirements.

I interpret the submission of these documents as an attempt by the individual to show that he has changed his behavior and demonstrated responsibility. Implicitly, he hopes that I will conclude from these actions that his behavior in the future will be responsible and therefore the DOE should not be concerned that he will not be reliable. These actions are the first steps to a showing that he will behave responsibly in the future. However, in and of themselves, they do not completely mitigate the DOE's security concerns. For example, the individual has failed to establish that he has taken any steps toward resolving some of his financial problems including his credit card debt and overdue child support payments. He has also failed to provide evidence mitigating some of the personal behavior concerns raised by the Notification Letter. Specifically, he has failed to complete his anger counseling. Moreover, in order to show adequate rehabilitation he must not only establish a pattern of dealing directly with his obligations, but also provide assurance that this pattern will guide his behavior in the future. In view of his longstanding pattern of irresponsibility, a sufficient showing that he has changed his behavior pattern would require, at a minimum, either a professionally supervised program or the maintenance of the responsible pattern over an extended period of time. I cannot find that the four actions he has taken during a six month period are adequate to establish this sort of pattern of responsibility. Therefore, I find that these actions do not establish adequate rehabilitation from his pattern of irresponsible behavior.

B. Evaluation of Character Witnesses and Individual's Statement

As stated above, the individual, his mother, brother and supervisor all testified at the Hearing. The individual testified that he was not a security risk. He stated:

Most of my testimony has been explanations. I'd like to say very strongly I think I'll work through this, and I think things will be fine. I never felt I was a security risk. I can't imagine what I would know that would be worth money to anyone. I wouldn't sell it if I could. . . . I have a lot to work through. It's been a very trying time for me. I was upset and I'm going to get better -- I think. Beyond that, I can't think of anything else.

Transcript at 132.

The individual's mother testified that he would never violate national security. Transcript at 53. His supervisor for the last six months testified that "he's an average worker" and "I don't have too many problems with him." Transcript at 107. His brother stated that "I think his attitude has changed for the better. He doesn't get traffic tickets like he used to." Transcript at 82.

I believe the individual, his mother, his supervisor, and his brother testified honestly. However, the testimony does not in and of itself go far enough to eliminate the security concern caused by the individual's irresponsible behavior. The mother's testimony includes some examples of the things she has done to help her son. She has provided the support he needs to change his behavior and she clearly hopes that he will act responsibly in the future. However, her testimony lacks any specific indication that he has changed his longstanding pattern of irresponsible behavior.

The testimony of the other witnesses was very general and clearly based on limited knowledge. This testimony was not supportive of the individual's position that he is rehabilitated. His supervisor's testimony indicates that the individual was a satisfactory worker. However, it is clear that the supervisor did not know any facts about the individual's private life. I therefore found his testimony not probative of whether the individual's behavior in his private life has changed. The brother's testimony indicated that he knew very little about the individual's life. Therefore, his testimony was not helpful in showing that the individual is currently behaving responsibly. I therefore find that the three witnesses presented by the individual did not convince me that he has changed his long standing irresponsible behavior pattern.

C. Analysis of Individual's Attitude

Overall my impression of this individual is that he seeks to rationalize. I found the individual's attitude was to provide a reason for each of his actions, rather than to admit to his own failings and seek to correct them. For example, at the Hearing, he justified not paying child support to his first wife on the basis that he was not receiving an official record of the payments he made. Transcript at 114. He explained that the reason he did not pay child support to his second wife was that he never was formally notified of the requirement to pay child support. Transcript at 118. He justified failure to file his income tax by stating that he was not capable of dealing with the filing requirements. Transcript at 119. He stated that he neglected to report his arrest to the DOE within the required time limit because he was not clear about the time limit during which such a report had to be filed. Transcript at 130. These justifications were self serving and on their face not credible. I perceived a lack of candor in the individual's attitude at the Hearing.

The individual continued this pattern of unreliable behavior, followed by a weak excuse, right up to the date of the Hearing. For example, the individual did not arrive on time for the Hearing, even though I had confirmed the time and place of the Hearing several times.(2) After a half hour beyond the time that the Hearing was scheduled to begin, the DOE counsel telephoned the individual. The individual indicated to the DOE counsel that he was not aware that he should attend the Hearing. I find his statement lacks plausibility, particularly since I had informed him that he would have an opportunity to make an opening statement at the Hearing. His failure to arrive at the established starting time for the Hearing, supports my overall conclusion that this individual is unreliable and fails to take important matters such as this Security Hearing very seriously. The failure to take the Security Hearing seriously indicates that he may not be conscientious about observing security matters as a whole.

The individual seemed to take a similarly irresponsible approach with respect to ensuring that his witnesses would appear for the Hearing. On two occasions prior to the Hearing he indicated that he would have four witnesses present to testify at the Hearing. When the individual arrived at the Hearing, he stated that he was not sure if any of the four were going to attend the Hearing. In fact, only one witness appeared for the Hearing. The individual was able to reach his supervisor by telephone and arrange for him to come to the Hearing. He also was able to telephone his mother and brother, and they testified by telephone. We were unable to reach his fourth witness, a co-worker.

The two reasons the individual provided for his mother and brother not attending the Hearing were that they had jobs and the weather was bad. I find these reasons implausible. If their jobs were a problem, he certainly could have mentioned that during our pre-hearing conference. There was snow the day before the Hearing. However, the roads were in good condition on the day of the Hearing. Thus, these excuses are totally unconvincing.

Moreover, after listening to the witnesses themselves I had the distinct impression that the individual had never even asked any of them to appear at the Hearing. While the mother thought she might be called on the telephone, the brother clearly did not even expect the telephone call. In addition, both his mother and brother indicated in their testimony that they believed that the DOE was asking them to provide information, rather than the individual. With regard to his supervisor and co-worker, the individual was not specific as to why he had not arranged for them to attend the Hearing. However, it is clear that the individual had not directly asked any of his witnesses to attend the Hearing and give testimony on his behalf.

My overall observation of the individual indicates that he shirks important responsibilities, provides implausible reasons for his failure to fulfill his responsibilities, and shows no concern about his failure to fulfill his responsibilities. I find that this lack of trustworthiness and his failure to be honest and candid at the Hearing support the finding of a Subpart L security concern.

IV. ANALYSIS OF CRITERION H SECURITY CONCERN

The Criterion H security concern is based on the diagnosis of a DOE consulting psychiatrist that the individual has a mental condition that adversely affects his judgment. The DOE consulting psychiatrist's report and his testimony state that the individual has a depressive disorder secondary to a mixed personality disorder. He also stated that the personality disorder had both narcissistic and antisocial personality features. The DOE consulting psychiatrist clearly supported his finding that depression and personality disorders cause a defect in judgment which could result in serious security lapses.

The individual failed to present evidence, testimony or arguments to mitigate or challenge the diagnosis provided by the consulting psychiatrist. During the Hearing the individual and his mother indicated that he has arranged for counseling from a counselor. Transcript at 50. Although the individual provided the counselor's name, the individual could not provide the counselor's title. Transcript at 121. The individual indicated he had only spoken briefly with the counselor. During that conversation the counselor requested that the individual write out a list of things the individual believes are problems in his life. Transcript at 123. As of the Hearing date, the individual had not started that assignment and could not even provide the date of his appointment with the counselor. This attitude towards the counseling process shows the same lack of seriousness and commitment that I referred to above. The individual did not seem to show any real interest in pursuing counseling to mitigate the security concerns associated with his mental disease.

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. I indicated in two telephone conversations and two letters to the individual that he should consider a second psychiatric evaluation or professional counseling to respond to the concerns raised by the DOE consulting psychiatrist. The first of those conversations occurred two months prior to the Hearing. Based on the record before me I find the individual has not provided an adequate response to the Subpart H concern.

The DOE consulting psychiatrist's diagnosis and testimony are reasonable and unchallenged. In the absence of expert opinion indicating that the individual's mental health problems are in remission and are unlikely to recur, I cannot make a finding that the Subpart H concern has been mitigated. See Personnel Security Hearing, Case No. VSO-0014, 25 DOE ¶ 82,755 at 85,541 (1995). 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: July 2, 1997

(1)1/ He admits that he failed to comply with that requirement when it was originally ordered. The exact nature of the court's findings are not a part of the record in this case.

(2)2/ I also sent him a copy of my opening statement which listed the time and date of the Hearing and included a statement that the individual would have the opportunity to make an opening statement.