Case No. VSO-0152, 26 DOE ¶ 82,787 (H.O. F. Brown July 30, 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.

July 30, 1997

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: April 2, 1997

Case Number: VSO-0152

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXXXX (hereinafter referred to as "the individual") to hold an 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)A Department of Energy Operations Office (DOE) suspended the individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony presented in this proceeding, the individual's access authorization should be restored.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE contractors, agents, DOE access permittees, and other persons designated by the Secretary of Energy for access to classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive,

common-sense judgment, made after consideration of all 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).

In this instance, the DOE granted the individual an access authorization, a "Q" clearance, as a condition of his employment with a DOE contractor. However, on March 4, 1997, DOE issued a Notification Letter informing the individual that his access authorization had been suspended based upon information in the possession of the DOE that created substantial doubt concerning his continued eligibility. The specific information in support of the determination by the DOE is set forth in Enclosure (1), "Statement of Charges," accompanying the Notification Letter, and is summarized below.

Enclosure (1) of the Notification Letter states that the derogatory information regarding the individual falls within the purview of the disqualifying criteria set forth in 10 C.F.R. § 710.8, on three grounds, subsections 710.8(f), (h) and (l). First, under Section 710.8(f), the Statement of Charges alleges that the individual "deliberately misrepresented, falsified, or omitted significant information from 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 . . . ." In this regard, DOE maintains in the Statement of Charges that during a Personnel Security Interview (PSI) conducted on July 9, 1996, the individual deliberately made false or misleading statements in response to DOE's inquiry into certain reported incidents of unusual behavior on the part of the individual. The specific nature of the alleged conduct on the part of the individual is described in greater detail below under Section 710.8(l).

Second, the Statement of Charges alleges that the individual has "[a]n 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." 10 C.F.R. § 710.8(h). In this regard, the Statement of Charges specifies that pursuant to the July 9, 1996 PSI, the individual was referred to Dr. XXXX XXXXXX, a DOE consultant psychiatrist, who performed a psychiatric evaluation of the individual. In his report of this evaluation submitted to DOE, Dr. XXXXXX diagnosed the individual with a composite of psychiatric conditions, including Adjustment Disorder, Mixed Personality Disorder (with Histrionic Personality, Narcissistic Personality, and Antisocial Personality traits), as well as Psychosocial and Environmental Problems, leading to Dr. XXXXXX's ultimate opinion that the individual has a mental condition which may cause a significant defect in his judgment and reliability. Behavioral manifestations of the individual's mental condition, that are discussed in Dr. XXXXXX's psychiatric report in support of his diagnosis, are also summarized in the Statement of Charges under Section 710.8(l).

The DOE invokes 10 C.F.R. § 710.8(l) on the basis of its finding that the individual has "[e]ngaged 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." In this regard, the Statement of Charges specifies a number of incidents, including that: (1) on XXXX X, XXXX, the individual was arrested and charged with Indecent Exposure when acting on a sudden urge during the early morning hours to walk naked through an unlit parking lot of a convenience store, (2) the individual has withheld or relayed inconsistent accounts of the circumstances of his Indecent Exposure arrest to DOE security personnel

as well as to his counselor, estranged wife, friends and co-workers, and the individual has avoided treatment for the underlying causes of his aberrant behavior, (3) during the PSI, the individual relayed apparently inconsistent accounts of his possession and use of pornographic material, (4) in July 1995, following his arrest, the individual was referred by the DOE to Dr. XXXXXXX XXXXXXX for psychiatric evaluation and gave false or misleading accounts of sexual activities he reportedly participated in with his first wife, (5) two of the individual's five ex-wives reported that the individual has disappeared on occasion for four days to a week, his whereabouts unknown, (6) during the first four months of marriage to his fifth wife, the individual irresponsibly ran up a very large and burdensome credit card debt, (7) in 1982, while a student, the individual signed official birth certificates, designating himself as the father of two of a woman's three children although the individual is not in fact the father, and (8) the individual has had problems in the workplace on several occasions and been subject to reprimand by his superiors for various rules violations.

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA) on April 2, 1997, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). On April 7, 1997, I was appointed as Hearing Officer in this case. After conferring with the individual and the DOE Counsel appointed, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the DOE Counsel called three witnesses: (1) Dr. XXXX XXXXXX, the DOE consultant psychiatrist, (2) the DOE Personnel Security Specialist who conducted two PSIs with the individual, and (3) the individual. The individual elected to call three witnesses, Dr. XXXXXXX XXXXXX, his counselor, and two co-workers. The transcript taken at the hearing shall be hereinafter cited as "Tr.". Various documents that were submitted by the DOE Counsel and the individual during this proceeding constitute exhibits to the hearing transcript and shall be cited as "Exh.".

II. Analysis

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal matter, 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 (1996). In this type of case, we are dealing with a different standard 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 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). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). 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).

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 or would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this determination are discussed below.

A. Findings

The individual is XX years old and has been employed by the DOE contractor as a XXXXXXXX XXXXXX XXXXXXX for thirteen years. The individual is presently married to his sixth wife, whom he recently married in December 1996, after being finally divorced from his fifth wife in August 1996. The individual has one biological child, a daughter by his first wife.

The determination by DOE to suspend the individual's security clearance pending administrative review evolved from the individual informing his employer that during the early morning hours of XXXX X, XXXX, he was arrested by the XXXXXXXXX, XXXXX police on a charge of Indecent Exposure, after being found by the police nude except for his shoes in the proximity of a convenience store parking lot. Exh. 1 (Report of Arrest). Following receipt of this information, the individual's employer referred him to its Employee Assistance Program (EAP) for consultation, and the EAP in turn referred the individual to Dr. XXXXXXX XXXXXXX, an EAP consultant psychiatrist, with whom the individual met on July 21, 1995, for psychiatric evaluation.

In the course of his examination, Dr. XXXXXXX interviewed the individual, performed a detailed analysis of the individual's personal background and subjected the individual to a battery of diagnostic tests, including the Minnesota Multiphasic Personality Inventory (MMPI), Multiphasic Sex Inventory and Diagnostic Inventory of Personality and Symptoms, among others. Exh. 2 (XXXXXXX Report) at 1. On the basis of the information received, Dr. XXXXXXX diagnosed the individual as manifesting Adjustment Disorder, Paranoid Disorder and various Personality Disorders with patterns of paranoid, schizoid, histrionic, narcissistic, antisocial and borderline behavior. Id. at 8. Dr. XXXXXXX opined a prognosis that "[t]he probability of [the individual] re-offending is high" based upon the individual's "unstable life style" and because the individual had failed to understand the seriousness of his arrest and tended to blame others for his problems. Id. at 9. Dr. XXXXXXX recommended that the individual receive therapy including, sex offender therapy, general therapy and marriage counseling. Id.

On XXXX XX, XXXX, the charge of Indecent Exposure against the individual was dismissed by the court, pursuant to a motion filed by the individual's attorney. The court order dismissing the action states: "In the interests of justice, the State agrees to dismiss without prejudice, and the Defendant agrees to seek counseling." Exh. 1. However, the individual did not seek counseling for the Indecent Exposure conduct, but continued to see only a marriage counselor, Dr. XXXXXXX XXXXXX, who he had begun to see one month before the incident. The individual did not inform Dr. XXXXXX about the incident.

On October 5, 1995, a Personnel Security Interview (PSI) was conducted with the individual concerning the matter of his arrest for Indecent Exposure. Exh. 3 (Transcript of 10/5/95 PSI). During this PSI, the individual relayed the following account of the arrest:

I was on my way to a convenience store to buy a pack of cigarettes. It was 3:30 in the morning. I got out of my van and started towards the store to get a pack of cigarettes and there wasn't anybody around, it was dark, and I . . . I don't know how else to say it, I got a wild hair and took all my clothes off except for my shoes and there was nobody around, my only intention was to walk across the parking lot and get back in my van and put my clothes back on and go in and get a pack of cigarettes. As I got about halfway across the parking lot I saw headlights coming and I ducked behind a vending machine that was there waiting for that car to go by and then proceed to my van but the car happened to be a policeman and he happened to pull right into the parking lot that I was in.

Id. at 4. According to the individual, the incident occurred at the conclusion of an evening during which he visited two bars. At the first bar, he consumed two beers, danced and listened to music. Upon arriving at the second bar at about 2:30 a.m., however, the individual decided not to go in but remained seated in his van while observing the crowd that was mingling in parking lot. The individual stated that he remained seated in his van for approximately twenty minutes but just prior to leaving, he removed his tee shirt since it was a warm evening and then proceeded to the convenience store. Id. at 13-20. The individual was unable to explain a report received by the police that evening that a man had been observed completely disrobing while seated in a van fitting the description of the individual's van, in the parking lot of the same bar he visited. Id. at 20-21.

The Personnel Security Specialist who conducted the October 5, 1995 PSI with the individual stated that following the interview she believed that "there were still unresolved issues, and . . . additional information was still needed." Tr. at 16. She therefore requested a background investigation of the individual and secured a copy of the individual's EAP records. Tr. at 16-17. These records and the Report of Investigation rendered by the Office of Personnel Management (OPM) identified additional derogatory information concerning the individual and led the Personnel Security Specialist to believe that the individual "had not been completely honest in the interview" about the circumstances of his arrest. Tr. at 17; Exh. 6 (OPM Report of Investigation). Consequently, the Personnel Security Specialist determined that a second PSI was warranted, which was conducted with the individual on July 9, 1996. Exh. 4 (Transcript of 7/9/96 PSI). The matters that were discussed during the second PSI and the explanations proffered by the individual form the basis for many of the allegations set forth in the Notification Letter, summarized above.

Subsequent to the second PSI, the individual was referred to Dr. XXXX XXXXXX, a DOE consultant psychiatrist, who examined the individual on August 23, 1996. Dr. XXXXXX states at the outset of his report, that was submitted to DOE on October 16, 1996, that he met with the individual for two and one-half hours "for a psychiatric assessment consisting of a complete psychiatric history and a mental status examination, with special emphasis on the unusual to aberrant behaviors." Exh. 5 (Report of John W. XXXXXX, MD, October 16, 1996). As part of his examination, Dr. XXXXXX had the individual complete three psychological tests: (1) the Minnesota Multiphasic Personality Inventory, 2nd Edition, Revised (MMPI-2R), (2) the Millon Clinical Multiaxial Inventory, 3rd Edition (MCMI-III), and (3) Sixteen Personality Factors (16PF). The diagnosis by Dr. XXXXXX concerning the individual is also summarized above in discussing the Notification Letter.

I will now turn to my analysis of the allegations raised by DOE in support of its position that the individual's security clearance should not be restored. As discussed in the succeeding sections of this Opinion, I am persuaded based upon substantial evidence that the individual cannot be deemed eligible to continue to hold an access authorization.

B. Section 710.8(f), Falsification

DOE alleges that the individual gave false or misleading information during the second PSI. First, DOE asserts that individual's account of the circumstances of his arrest for Indecent Exposure is somewhat contrary to the police report and other information received by DOE. The individual stated that when he saw the police car approaching the convenience store parking lot, he attempted to run back to his van to get his clothes. However, the police report states that the individual fled from the lot and was arrested a few blocks from the scene hiding behind a semi-trailer. In addition, DOE questions the individual's claim that he had removed only his shirt before leaving the second bar and proceeding to the convenience store. For the reasons below, I find that the explanations given by the individual of these events are inconsistent and that the individual either misrepresented the facts or intentionally omitted significant information during the two PSIs. Such dishonesty in the context of a PSI runs counter to the trust upon which the conferring of a security clearance is premised. See Personnel Security Hearing, Case No. VSO-0125, 26 DOE ¶ 82,774 (1997).

When describing the incident during the initial PSI, the individual indicated that when he saw the police vehicle enter the convenience store parking lot as he walked naked across the lot, he ducked behind a vending machine but was detected and arrested. Exh. 3 at 4. The individual stated during the second PSI that he was apprehended by the police when "tryin' to run back to my van." Exh. 4 at 6. However, both of these accounts vary significantly from the report of the arresting police officer which states that although the individual was initially observed hiding behind a vending machine at the convenience store, "[the individual] ran from the scene and was apprehended at XXXXX and XXXX street hiding behind a semi trailer."(2)Exh. 1. While the individual may have been attempting to take a circuitous route to his van to get his clothes in order to avoid arrest, the fact that he fled from the police is a significant fact which he omitted during both of the PSIs concerning this matter.

I also find doubtful the individual's statement that he removed only his shirt before departing the parking lot of the bar. The police report indicates that shortly before the individual was spotted by the police cruiser at the convenience store, other police officers had responded to a complaint call reporting that a man had been observed outside the same bar undressing in a van matching the description of the individual's van. Exh. 1. When interviewed during the OPM investigation, the person who telephoned the police stated that (s)he observed the individual sitting in his van outside the bar and that the individual took off his shirt and hung it over the driver's side window but then, after moving in his seat as though he were disrobing, the individual also hung his jeans and "what appeared to be his undershorts" over the window. Exh. 6 (OPM Investigation Report) at 46. The individual denies that he removed all of his clothes before leaving the bar but added to his initial story during the second PSI that while he only removed his shirt he did hang it over the van window. Exh. 4 at 14. However, the individual has shown that he tends to be less than completely honest with regard to his version of the events of that night. The reported observations of the person who telephoned the police are confirmed in the OPM investigation as well as in the report of the police who responded to the scene. I can think of no reason why an anonymous person would fabricate this story. The fact that the individual was arrested in the nude a short time later fleeing from the convenience store makes it more plausible for me to believe that the individual did undress in his van before leaving the bar, and consequently the individual misrepresented the facts during the PSIs.

Finally, regarding falsification under Section 710.8(f), DOE alleges that the individual was untruthful during the second PSI when he denied any knowledge of incidents reported by two of his former wives (first and fourth ex-wives) to the OPM investigators that the individual disappeared for four days on one occasion and for a week on another while married to them. Exh. 6 at 37, 45. During the second PSI, the individual stated that he could recall only one time while married to the fourth wife that he left for only one day to pawn a watch in XXXX XXXX XXXX, XXXX. Exh. 4 at 43-44. When questioned concerning this matter at the hearing, the individual again stated that he could not remember ever leaving for four days without explanation, but only the one-day trip to sell the watch and other brief stays at his friend's house to avoid the fourth wife who by his account became abusive when angry. Tr. at 146-47. Again, however, I find hard to believe the individual's assertion that he has no recollection of either incident and I found his testimony unconvincing. The second incident, the four-day disappearance, was reported to the OPM investigators by his fourth wife to whom he was married in the early 1990's. She was very clear and specific in describing the circumstances of the individual's disappearance which she asserts occurred in the spring of 1991, when their marriage had begun to deteriorate although they were attempting reconciliation. Exh. 6 at 44-45. I share the impression drawn by DOE that the individual has feigned his inability to recall the incident in order to avoid disclosing his activities during that time. Statement of Charges at 2. The fact that the first wife reported a similar incident further leads me to discount the individual's candor regarding this matter.

C. Section 710.8(h), Mental Condition

As specified in the Notification Letter Statement of Charges, Dr. XXXX XXXXXX, the DOE consultant psychiatrist, diagnosed the individual with a composite of psychiatric disorders leading to his conclusion that the individual has "a mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). During the hearing, Dr. XXXXXX expanded upon his assessment. According to Dr. XXXXXX, the individual has "an adjustment disorder which I think is chronic" which manifests itself in "disturbance of conduct." Tr. at 67-68. Dr. XXXXXX further opined that the individual also suffers from depression (either cyclothymic or atypical bipolar), characterized by mood swings which "may explain some of the difficulties he had in his relationship with the marriages." Tr. at 69.(3) In addition, Dr. XXXXXX diagnosed the individual as having mixed personality disorder, including histrionic, narcissistic and characterological. Tr. at 70.

However, it is the histrionic manifestations of the mixed personality disorder that Dr. XXXXXX believes should be considered a primary concern in regard to DOE security since it has a direct adverse impact upon the individual's judgment and reliability. Tr. at 75.(4)Dr. XXXXXX believes that it is this mental condition which underlies "[the individual's] irresponsibility in the marriages" (Tr. at 75), "his exhibitionistic tendencies as was evidenced from the indecent exposure incident" (id.), and "problems of impulsivity" (Tr. at 77). Dr. XXXXXX gave examples of the individual's impulsive behavior marked by poor judgment, noting: (1) an incident when the individual as an adolescent decided to take a car off a dealership lot and go joy riding (Tr. at 76), (2) the individual spent $30,000 during the first four months of marriage to his fifth wife putting him in serious financial debt (Tr. at 77), and (3) the individual deciding to sign two birth certificates stating that he was the father of two children (so that the mother could receive welfare) although he was not in fact the father (Tr. at 77-78).(5)Dr. XXXXXX further opined that the pattern in which the individual "blames others or passes it off gives me a great deal of concern that he's not honest with others or himself." Tr. at 84.

Turning to his prognosis of the individual and the possibility of further aberrant behavior, Dr. XXXXXX concurred in the opinion of Dr. XXXXXXX XXXXXXX, who saw the individual in July 1995 (see Findings, supra), that the probability of the individual reoffending is moderately high in the absence of serious psychotherapy. Tr. at 80-81. Indeed, Dr. XXXXXX fears that the individual's arrest for Indecent Exposure represented a "first time [] exhibitionistic use as an outlet for this impulsive character makeup" which "could be a manifestation of sex addiction and if left untreated may develop into much more serious sexual deviant manifestations." Tr. at 81. For this reason, Dr. XXXXXX expressed concern that the individual has yet failed to seek the type of psychotherapy which he needs to delve into the root causes of his behavior, but has instead saw fit to only seek marriage counseling which Dr. XXXXXX described as "a Band-Aid approach" to relieving the individual's chronic condition. Tr. at 87.

The individual's marriage counselor, Dr. XXXXXXX XXXXXX, who was called as a witness by the individual, did not disagree with Dr. XXXXXX's assessment of the individual. Tr. at 44-50. Dr. XXXXXX clarified that he had only performed marriage counseling with the individual in group and some private sessions first during 1995 at the time of the individual's breakup with his fifth wife,(6)and continuing after the individual was married for a sixth time in December 1996. Tr. at 45-46. However, the individual never revealed to Dr. XXXXXX his salient behavioral problems such as his arrest for Indecent Exposure, his considerable use of pornographic material or a spouse-swapping sexual encounter involving a previous wife. Tr. at 55-57. Dr. XXXXXX had only dealt with "self-esteem" and "rejection" issues experienced by the individual, but after reading Dr. XXXXXX's report and being informed of the individual's behavioral difficulties, Dr. XXXXXX stated to the individual at the hearing: "I actually concur with Dr. XXXXXX that there are -- there is evidence that, as he said, you need to do some deeper psychotherapy, some deeper work where you can address some of these issues that have been brought up here. . . . [T]here were some things that I didn't know about your background, some things that I didn't know happened. And the testing indicates you would profit from that. I would recommend that you do that." Tr. at 88. After the testimony of Dr. XXXXXX and Dr. XXXXXX, the individual was asked by Hearing Counsel "Do you agree with the opinion today that you need psychotherapy?" The individual responded, "I believe it would be beneficial." Tr. at 122.(7)

On the basis of the record concerning this matter, I have concluded that the individual was properly diagnosed by the DOE psychiatrist with having a mental condition which has caused and likely may continue to cause a defect in his judgment and reliability. The individual has not only failed to mitigate the legitimate security concerns of DOE raised in this regard, but conceded through the testimony of his own expert witness, and by his own words, the need for psychotherapy as a necessary first step to remedy his mental condition. When coupled with the uncontroverted evidence of aberrant behavior resulting from this mental condition, I am inexorably drawn to the conclusion that the individual should not be allowed to hold a security clearance at this time. See Personnel Security Hearing, Case No. VS0-0034, 25 DOE ¶ 82,768 (1995).

D. Section 710.8(l), Unusual Conduct

Last, DOE asserts that 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 the individual may be subject to pressure, coercion or exploitation. 10 C.F.R. § 710.8(l). The grounds for the DOE's assertion are specified in the Background section of this Opinion in discussing the Statement Charges set forth in the Notification Letter, and will not be repeated here. Certain of these matters have already been addressed in reaching a determination regarding DOE's allegations of falsification and mental condition.(8)However, other matters raised by DOE in this context require additional evaluation. For the reasons below, I agree that DOE properly invoked Section 710.8(l) and that the individual has failed to sufficiently mitigate the security concerns raised by his unusual conduct.

DOE first raises the matter of the individual inexplicably deciding to walk naked across the convenience store parking lot. The individual himself seems to be at a loss to explain his impulse to do this. The individual maintains that he was not intoxicated but had only two beers that evening and the police report indicates that the individual was lucid upon being arrested, explaining to the police "I was stupid, I just got a wild hair." Exh. 1; Tr. at 145. While the individual's mental condition, discussed above, may explain his urge to act out this unusual impulse, the individual's subsequent conduct relating to this matter also leads me to question his honesty and trustworthiness.

As indicated above, the individual was inconsistent in recounting the events of that evening to DOE during the PSIs. The record also establishes that the individual has told false or misleading accounts of the circumstances of the arrest to his close friends. One of the two co-workers that the individual called as character witnesses at the hearing is a close friend who bailed the individual out of jail that night. This co-worker stated that the individual first told him that he was arrested for urinating in public but later explained that he had been caught "streaking." Tr. at 102. The second co-worker testified that the individual told him concerning the arrest that during the middle of the night while at home the individual ran out to his car to retrieve some computer equipment but in his hurry had neglected to clothe himself. Tr. at 114-15.(9)While both of these co-workers believed the individual to be honest and trustworthy, they seemed unaware of the inconsistent versions of the arrest the individual had relayed to them and others.

DOE also points to other falsehoods that the individual has failed to adequately explain. The individual told Dr. XXXXXXX that he had not had an extramarital affair but now, based upon the interview with his first ex-wife, readily admits to have engaged in spouse-swapping on at least one occasion. Tr. at 30, 128-29. DOE also maintains that during the second PSI the individual gave varying accounts of his knowledge of pornographic material that the individual states to have found near the dumpster at the apartment where he resided while separated from his fifth wife. The individual reported that he took the material which he described as magazines into his apartment and put it into a box which he placed in the closet. Exh. 4 at 61-63. When asked more specifically about the contents of the box, the individual responded "I don't know." Exh. 4 at 64. Later in the PSI, however, the individual revealed his knowledge that the box contained pornographic videos and "sex toys". Exh. 4 at 64-65. Having reviewed the transcript of the PSI concerning this matter, it is apparent that the individual was not completely truthful concerning his knowledge of the contents of the box.

Finally, DOE asserts that there have been disciplinary matters in the workplace involving the individual which also bear negatively upon the individual's reliability. One of these matters involved an incident in 1994 when the individual was suspended after caught sleeping at XXX XXXX. Tr. at 130. The individual explained that this followed a day in which he worked the night shift and then was up all day after being informed that his wife had been in a car accident. Tr. at 130-31. However, this is among a number of more minor infractions where the individual has received either formal or informal reprimands for tardiness, failure to follow dress and grooming (hair and mustache length) rules, and failure to perform job duties. Tr. at 131-33; Exh. 4 at 95-97.

In sum, I am again drawn to the conclusion that the individual has failed to overcome the legitimate security concerns of DOE relating to repeated instances of unusual conduct which demonstrate that the individual is not honest, trustworthy or reliable. Moreover, I believe that in the event the individual fails to secure the type of psychotherapy that has been recommended by both the DOE psychiatrist and his counselor, the individual might engage in other impulsive behavior of an aberrant nature. Since the individual has shown that he tends to hide information from his counselor and friends, he could potentially be made subject to coercion, exploitation or blackmail in order to avoid disclosure of other incidents. See Personnel Security Hearing, Case No. VS0-0034, 25 DOE ¶ 82,768 at 85,624-25 (1995).

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(f), (h) and (l) in suspending the individual's access authorization. It is my opinion that, within the meaning of those provisions, the individual has: (1) "deliberately misrepresented, falsified, or omitted significant information from 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 . . . ."; (2) a "mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability"; and (3) "[e]ngaged in [] unusual conduct . . . which tend[s] to show that the individual is not honest, reliable, or trustworthy . . . ." The individual has failed to present adequate mitigating facts or circumstances to erode the factual basis for these findings or otherwise alleviate the legitimate security concerns of DOE. In view of these criteria and the record before me, I cannot find that restoring the individual's access authorization would not endanger the common defense and security and would be 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 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 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 within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b). The address where 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

Fred L. Brown

Hearing Officer

Office of Hearings and Appeals

Date: July 30, 1997

(1)1/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as an access authorization or security clearance. In the present case, the individual seeks the restoration of a level "Q" access authorization; however, that designation has no bearing upon the applicable standards governing eligibility to hold an access authorization.

(2)2/ The convenience store is located on XXXXX XXXXXX Street. A street map of XXXXXXXXX, XXXXX shows that the intersection of XXXXX and XXXX Street, the reported location of the individual's arrest, is one block east and one block north of the convenience store. Contrary to his initial story and more consistent with the police report, the individual stated during the hearing in response to my inquiry that he was a "hundred yards" from his vehicle at the time of his arrest. Tr. at 146.

(3)3/ Dr. XXXXXX's supposition is apparently confirmed by information received from the individual's ex-wives in the context of the OPM investigation. The fifth wife stated that the individual would suddenly and unexpectedly become easily angered. Exh. 6 at 39. The fourth wife similarly stated that "he was moody and would get angry for no reason, . . . one minute he was happy and the next minute he was angry." Exh. 6 at 44.

(4)4/ Dr. XXXXXX introduced into evidence and read into the transcript of the hearing the description of "histrionic personality" set forth in Millon Clinical Multiaxial Inventory-III Manual. The Manual describes the Behavioral Level of the histrionic personality in part as "Expressively Dramatic (e.g., is over reactive, volatile, provocative, engaging, intolerant of inactivity, resulting in impulsive, highly emotional, and theatrical responsiveness; describes penchant for momentary excitement, fleeting adventures, and short-sighted hedonism)," and "Interpersonally Attention-Seeking (e.g., actively solicits praise and manipulates others to gain needed reassurance, attention, and approval; is demanding, flirtatious, vain, and seductively exhibitionistic, especially when wishing to be the center of attention)." Exh. 7 at 52. Based upon his review of the pertinent information, Dr. XXXXXX stated that "a lot of this does fit" with respect to the individual. Tr. at 73.

(5)5/ The consequences of this action continue to cause the individual difficulty. The birth certificates which he endorsed, albeit inappropriately, were the basis for a court order entered in the State of XXXX to attach his wages for child support. Exh. 4 at 76.

(6)6/ Interestingly, the individual began to see Dr. XXXXXX in June 1995, one month before the arrest and met with Dr. XXXXXX again in September 1995, but still never mentioned the arrest to Dr. XXXXXX. Tr. at 45-46.

(7)7/ The individual was questioned as to why he ignored both the court order dismissing the Indecent Exposure charges that directed him to "seek counseling" (Exh. 1) as well as Dr. XXXXXXX's report which specifically recommended "sex offender therapy" and "general therapy" (Exh. 2). The individual stated that he did not believe the court order directive was a mandatory condition of the dismissal, and that he decided to seek only marriage counseling because he believed his marital difficulties (resulting in low self-esteem) to be the cause of his behavioral problems. Tr. at 120-122.

(8)8/ DOE also raises under Section 710.8(l) the inconsistent stories told by the individual concerning his arrest, the disappearances while married to his first and fourth ex-wives, the large debt he amassed while married to his fifth ex-wife and his decision to falsely designate himself as the father on the birth certificates of two children although he is not in fact the father. As discussed previously in this Opinion, the individual has yet to proffer a plausible explanation for these events.

(9)9/ The individual claimed that he did not tell the second co-worker the computer equipment story but the co-worker must have instead gotten it from someone else. Tr. at 136. Interestingly, however, another friend that was interviewed during the OPM investigation stated concerning the arrest that "[the individual] said that he was arrested [] for Indecent Exposure when he ran out of his apartment without any clothes on to get something from his car." Exh. 6 at 41.