Case No. VSO-0183, 27 DOE ¶ 82,761 (H.O. Freimuth March 5, 1998)

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

March 5, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: November 6, 1997

Case Number: VSO-0183

This Opinion concerns whether XXXXXXXXXX (hereinafter "the Individual") is eligible for access authorization. Eligibility for access authorization is governed by the criteria set forth at 10 C.F.R. Part 710.

I. Background

A. The Applicable Regulations

The Department of Energy (DOE) regulations governing this matter 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”). The determination that an individual is eligible for such access affords that individual “access authorization” or a “security clearance.”

An individual is eligible for access authorization if such 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). Certain types of derogatory information raise a concern whether an individual can meet that standard. Id. § 710.7(b). The ultimate decision concerning eligibility is a comprehensive, common sense judgment based on a consideration of all relevant information. Id. § 710.7(a), (c). Such information includes the nature of the conduct at issue, the absence or

presence of reformation or rehabilitation, and the impact of the foregoing on the relevant security concerns. Id. § 710.(7)(a), (c).

When there are unresolved issues concerning an individual’s eligibility for access authorization, the matter is referred for “administrative review.” 10 C.F.R. § 710.20. The purpose of a hearing is to afford the individual the opportunity to resolve those questions. 10 C.F.R. § 710.21(b)(6). Thus, the burden is on the individual to present testimony or evidence to demonstrate that access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(b). This standard is designed to protect the national interest and thus differs from the standard applicable to criminal proceedings in which the prosecutor must prove guilt beyond a reasonable doubt.

B. Procedural Background

In October 1996, the Individual signed and dated a Standard Form 86, “Questionnaire for National Security Positions” (the DOE security questionnaire). Subsequently, a DOE security specialist conducted a Personnel Security Interview (the PSI) of the Individual. The transcript of the PSI will be cited as “PSI Tr. at ___.”

In October 1997, the DOE office responsible for determining the Individual’s eligibility for access authorization (the DOE office) commenced this administrative review proceeding by issuing a Notification Letter to the Individual. The Notification Letter stated that the DOE office possessed information that created a substantial doubt concerning the Individual’s eligibility for access authorization. The Notification Letter stated that the information indicated that the Individual provided inaccurate information in security investigations, a security concern under 10 C.F.R. § 710.8(f) (Criterion F). The Notification Letter also stated that the information indicated a pattern of dishonest behavior that raised a concern under 10 C.F.R. § 710.8(l) (Criterion L) that the Individual is not “honest, reliable or trustworthy.”

In response to the Notification Letter, the Individual requested a hearing. Three witnesses testified at the hearing. Two witnesses were called by the DOE office. The first was the DOE security specialist. The second was a DOE security manager. The Individual testified on her own behalf. Both the DOE office and the Individual submitted written evidence. The hearing transcript will be cited as “Hrg. Tr. at __.”

C. The Notification Letter

The Notification Letter cites, as security concerns, theft-related incidents, failure to make timely payment on a loan, and inaccurate statements on security questionnaires and to investigatory officials. Some of these incidents are reflected in 1989 and 1992 reports of the Department of Defense Investigative Service (DIS), which performed investigations of the Individual in connection with prior DOD security clearances. The incidents cited in the Notification Letter can be summarized as follows:

The Individual reported to security officials that, in 1978, she was with a group of girls, one of whom stole a purse. Law enforcement officials became involved, and the Individual was required to perform community service. DOE Ex. F at 10; PSI Tr. at 36-38.

The Individual also reported to security officials that in 1980,(1) a K-Mart store terminated her from her job as a cashier, claiming that she had taken clothes for which she had not paid. K-Mart banned the Individual from returning to the store. PSI Tr. at 30- 35.

In 1986, when the Individual was no longer a juvenile but rather in her early twenties, she was cited for shoplifting at a TJ Maxx store. DOE Ex. F at 21. The Individual stated that she shoplifted a briefcase and was required to perform community service. PSI Tr. at 27-30.

In 1988, the Individual was cited for “embezzlement.” DOE Ex. F at 21. The Individual stated that she presented approximately $100 to $120 of merchandise to her sister, a cashier at Bradlee’s department store, and that her sister did not charge the Individual for approximately $40 of the merchandise. The Individual stated that, as a result of this incident, she was required to perform community service. PSI Tr. at 40-42.

In 1989, the Individual did not make complete disclosures on a DOD security questionnaire. The Individual answered “No” to the question whether the individual had ever used drugs. Later, in response to questions in a PSI, the Individual stated that she had used marijuana on four or five occasions when she was a teenager. DOE Ex. G at 11; PSI Tr. at 54-56. The Individual also did not disclose the 1978 stolen purse incident, or the 1986 shoplifting citation, as required by the form. DOE Ex. G at 11.

In 1991, the Individual failed to report, and later made untruthful statements to her contractor employer and a postal investigator concerning, a possible theft of jewelry from the mail by an employee under her supervision. DOE Ex. F. As a result, the Individual’s employer suspended her for two weeks, demoted her, and transferred her to another job site. Id. at 3-4.

In 1992, a hospital obtained a $1500 judgment against the Individual for an unpaid hospital bill, DOE Ex. B, incurred as the result of a 1989 emergency room visit following an automobile accident. PSI Tr. at 12-14. In 1993, the Individual obtained a $10,000 insurance settlement for the accident, Hrg. Tr. at 68, but did not satisfy the judgment until 1994, when she needed to do so in order to obtain financing for a residence. PSI Tr. at 11; DOE Ex. B.

Also, in 1992, the Individual did not make complete disclosures on a second DOD security questionnaire. The Individual did not report her earlier drug use, or the 1989 delinquent hospital bill and 1992 judgment, as required by the form. DOE Ex. F at 31.

In 1996, the Individual did not report, on her DOE security questionnaire, her prior delinquency on the 1989 hospital bill. The questionnaire required disclosure of any financial obligations that had been over 180 days delinquent in the last seven years. DOE Ex. H at 10.(2)

The Notification Letter cites the inaccurate statements in connection with security investigations as raising a concern under Criterion F. The Notification Letter cites all of the identified conduct as raising a security concern under Criterion L.

D. The Individual’s Response

The Individual concedes the accuracy of most of the information in the Notification Letter. The Individual argues, however, that additional information should be considered in mitigation.

With respect to the 1978 incident involving the stolen purse, the Individual states that she did not steal the purse or receive any of the proceeds. PSI Tr. at 36-38. The Individual further states that she identified the culprit to the police. Id. at 36.

With respect to her termination by K-Mart, the Individual denies that she committed any offense. The Individual states that K-Mart did not call the police.

With respect to the 1986 shoplifting citation, the Individual states that she was with a group in which each person was attempting to steal an item from the store. PSI Tr. at 27-28. The Individual attributes her participation to a group mentality. Id. at 58.

With respect to the 1988 embezzlement, the Individual states that she did not ask her sister to undercharge her. PSI Tr. at 41. Nonetheless, the Individual states, she was aware, at the time, that her sister had undercharged her. Id.

With respect to her 1989 and 1992 DOD security questionnaires, the Individual testified that she did not disclose her 1977 drug use because she was afraid that disclosure would preclude her from obtaining a security clearance, which in turn would jeopardize her job. Hrg. Tr. at 74-75. With respect to her failure to disclose the 1986 shoplifting incident on the 1989 questionnaire, the Individual notes that she disclosed the 1988 embezzlement, and she maintains that her failure to disclose the 1986 incident was an oversight. Id. at 76-77.

With respect to her failure to make timely payment of her $1500 hospital bill, the Individual maintains that she used the 1993 $10,000 insurance settlement to assist a needy relative. Hrg. Tr. at 67-69. The Individual maintains that she knew that she would have to pay the bill sometime, id. at 69, and she notes that she ultimately did so.

Finally, with respect to her 1996 DOE security questionnaire, the Individual maintains that she did not knowingly omit her prior delinquency on the 1989 hospital bill. The Individual testified that she was thinking about credit card debt when she answered the question about delinquencies. Hrg. Tr. at 66.

The Individual’s overall response to the Notification Letter is that her past conduct does not accurately reflect her current behavior or character. The Individual states that she had been hanging out with the “wrong” crowd, and that she no longer does so. The Individual states that now she stays busy working at two jobs and trying to make a better life for herself.

In support of her argument that her past conduct does not properly reflect the person that she is today, the Individual notes that she did not turn 18 until 1981 and, therefore, was a juvenile when some of the earlier incidents occurred. The 1977 drug use and the 1978 purse incident would fall into this category. The K-Mart incident would fall into this category if the Individual’s recollection that the date was 1980 is accurate; K-Mart records show her employment as occurring in 1981 and 1982. DOE, Ex. G at 3.

The Individual also cites the passage of time as a mitigating factor. The Individual notes that the most recent theft-related citation occurred almost ten years ago, and that the untruthful statements about drug use and the mail incident occurred between five and ten years ago. Thus, she argues, the only incidents that have occurred in the last five years concern her failure to make timely payment on her 1989 hospital bill and her failure to disclose that matter on her 1996 security questionnaire.

Finally, the Individual argues, there is evidence in the record that she is honest, reliable, and trustworthy. The Individual cites the fact that she has two jobs, and has worked for the same full-time employer for nine years and the same part-time employer for eight years. The Individual cites the 1992 DIS report which stated that, with the exception of the mail incident, her supervisor at her full-time job “commented very positively on all [the Individual’s] character attributes and recommended her for a position of trust.” DOE Ex. F at 7. The Individual also has submitted letters from her former and current supervisors at her part-time job, who describe her as honest, dedicated, dependable, and having a good work ethic. December 12, 1997 Submission; January 22, 1998 Submission. These descriptions, the Individual maintains, correctly characterize the person that she is today.

II. Analysis

Under the regulations, an individual is eligible for a security clearance if a clearance “will not endanger the common defense and be clearly consistent with the national interest.” 10 C.F.R. § 710.28(d). The regulations set forth criteria for making that determination. The Notification Letter cites the Individual’s conduct as raising security concerns under Criteria L and F.

A. The Criterion L Concern

Criterion L applies where an individual has “[e]ngaged in unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or may be subject to pressure, coercion, exploitation, or duress which might cause him to act contrary to the best interests of the national security.” 10 C.F.R. § 710.8(l).

There is no question that the information cited in the Notification Letter raises Criterion L concerns. The pattern of dishonest behavior in this case raises concerns that the Individual is not honest and may be subject to coercion. The question, therefore, is whether the Individual has resolved those concerns.

The Individual’s juvenile status at the time of some of the incidents, as well as the passage of time, provide some degree of mitigation. The Individual’s most recent shoplifting arrest was ten years ago, approximately five months before she obtained her current full-time job. The Individual’s untruthful statements in the DOD security questionnaires, and in the mail investigation, occurred five or more years ago.

There is also some favorable evidence concerning the Individual’s current conduct and behavior. Various supervisors have described the Individual as honest, dedicated, dependable, and trustworthy. They have stated that they would recommend her for a position of trust. The DOE office has stated that the Individual’s credit report does not indicate any current credit problems. Hrg. Tr. at 73. Finally, the Individual’s own assessment of her past conduct is favorable evidence: the Individual has testified that she recognizes that her past conduct was wrong.

Although the foregoing factors partially mitigate the security concern, they are not adequate to resolve the concern. A pattern of dishonest conduct raises a very serious security concern that is difficult for an individual to resolve. As the security manager testified, dishonest conduct raises a core character issue of honesty, and there is no test to determine if an individual is honest. Hrg. Tr. at 35-37. This contrasts with the situation of substance abuse, where an individual can demonstrate the current absence of use through drug tests and testimony. Moreover, once a pattern of dishonest conduct is established, it is difficult to accept a contention that a particular incident should be considered in isolation from the pattern. In this case, there is twenty year period in which the Individual’s honesty has been an issue (1978, the purse incident; somewhere between 1980 and 1982, the K-Mart incident; 1986, the TJ Maxx incident; 1988, the Bradlee’s incident; 1989, the omissions on a DOD security questionnaire; 1991, the mail incident; 1992, the omissions on a second DOD security questionnaire; 1994, delinquent debt; 1996, the omissions on the DOE security questionnaire). Because of this twenty year pattern, no single incident can be viewed in isolation. Although the Individual’s recognition that her conduct was wrong is certainly a step toward reformation and rehabilitation, that recognition and the letters from her former and current supervisors do not establish that reformation and rehabilitation have occurred. As the security manager testified, national security concerns are not resolved unless an individual has demonstrated that reformation and rehabilitation have occurred. Hrg. Tr. at 37-41. Accordingly, I cannot conclude that the Individual has resolved the security concern arising under Criterion L.

B. The Criterion F Concern

Criterion F concerns information that indicates that an individual “[d]eliberately misrepresented, falsified, or omitted significant information” during an official inquiry concerning his eligibility for a clearance. Such information raises serious doubts about whether an individual should be entrusted with responsibility for safeguarding classified information or special nuclear material.

The Individual concedes that she deliberately omitted required information from her 1989 and 1992 DOD security questionnaires. The Individual testified that she was afraid that if she disclosed the information, she would lose her job. The Individual testified that she recognizes that this behavior was wrong and that she would not make false statements in the future.

The Individual also omitted information from her 1996 security questionnaire. The Individual testified that the omission was inadvertent.

As discussed above, the admitted omissions are part of a pattern of behavior raising a serious question about the Individual’s honesty and reliability. Although the Individual’s current admission that this conduct was wrong is certainly a step toward reformation and rehabilitation, the record does not establish that reformation and rehabilitation have occurred. Accordingly, I cannot conclude that the Individual has resolved the Criterion F concern.

III. Conclusion

As the foregoing demonstrates, the Individual has not resolved the security concerns arising under Criteria L and F. Accordingly, I cannot conclude that a grant of access authorization “will not endanger the common defense and security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). For that reason, I cannot recommend that the Individual be granted access authorization.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of 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 within 20 days of receipt of the statement.

Janet N. Freimuth

Hearing Officer

Office of Hearings and Appeals

Date: March 5, 1998

(1)The 1990 DIS report indicates that the Individual was employed by K-Mart in 1981-1982. DOE Ex. G at 3.

(2)Although not mentioned in the Notification Letter, the 1992 judgment should also have been listed in response to Question 29 on the Individual’s DOE security questionnaire, which requires the disclosure of any civil judgments within the last seven years. DOE Ex. H at 10.