Case No. VSO-0194, 27 DOE ¶ 82,771 (H.O. Adeyeye July 9, 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.

July 9, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer’s Opinion

Name of Case: Personnel Security Hearing

Date of Filing: February 2, 1998

Case Number: VSO-0194

This Opinion concerns the eligibility of XXXXXXXXXXXXXXXXX (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.” A Department of Energy Operations Office (DOE) suspended the individual’s access authorization under the provision 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. As set forth in the Opinion, I recommend the individual’s security clearance should not 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 case, the DOE granted the individual a security clearance as a condition of his employment with a DOE contractor. However, on December 16, 1997, the DOE informed 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. Then on January 28, 1998, the DOE issued a Notification Letter to the individual which specified the derogatory information in support of its determination. That information 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 10 C.F.R. § 710.8 (l). The DOE invokes 10 C.F.R. § 710.8 (l) on the basis of findings that the individual has “engaged 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 that the individual was arrested in January 1996 for assaulting his wife. After pleading guilty to the assault, the individual attended court-ordered group counseling for approximately six months. In a Personnel Security Interview (PSI) conducted on September 25, 1996, the individual confirmed DOE’s derogatory information regarding the assault, conviction and counseling. In a subsequent PSI, the individual also admitted to other physical confrontations with his two previous wives. The individual also admitted having a problem controlling his temper. Finally, the Statement of Charges referred to an April 1997 psychiatric evaluation of the individual, conducted by a DOE consultant psychiatrist, which resulted in a statement in a report issued by the psychiatrist that the individual was a “wife beater” and was dishonest.

In a letter to the DOE’s Office of Hearings and Appeals on February 2, 1998, the individual exercised his right under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21 (b). On February 18, 1998, I was appointed as Hearing Officer in this case. After conferring with the individual and the appointed DOE counsel, 10 C.F.R. § 710.24, I set a hearing date.(1) At the hearing, the DOE counsel called the DOE consultant psychiatrist as a witness. The individual elected to call as witnesses four co-workers and one personal friend. 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 “Ex.”

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 Dept. 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).

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 of Fact

The facts in this case are uncontested. The individual is XX years old and has been employed by the DOE contractor for 22 years. The individual testified that he first married when he was “very young,” and that marriage ended in divorce three years later. Tr. at 109; DOE Ex. 8 (Transcript of Personnel Security Interview dated XXXXXXXXXX) at 10. The individual then remarried, and this marriage ended in divorce after 15 years. DOE Ex. 4 at 2. Six years later, in XXXXXXXXXX, the individual married his third wife, and events arising from this marriage form the basis of DOE’s allegations in the Statement of Charges.

In January 1996, the individual was arrested for assaulting his third wife. Tr. at 98-101. The individual testified that the couple had been arguing for several days, and towards the end of that time period, in the midst of an argument, the individual shoved his wife. Tr. at 98-100; DOE Ex. 7 (Transcript of Personnel Security Interview dated XXXXXXXXXX) at 5. The individual was arrested, pled guilty to assault, and was ordered by the court to attend a six-month domestic violence counseling program as a condition of his probation. Tr. at 99-100; DOE Ex. 8 at 4. He did not seek the advice of an attorney, nor was he represented by counsel in court. Tr. at 99-100.

In February 1996, at the urging of his wife, the individual began to see a local psychiatrist about his behavior. Tr. at 105-106. His wife recommended this course of action out of concern for his behavior and its effect on their marriage. DOE Ex. 7 at 14. According to the individual, he attended private sessions with the local psychiatrist for about two months, and was prescribed a sleeping pill to help him sleep at night. Tr. at 105-106; DOE Ex. 7 at 14. According to the individual, the doctor acknowledged that the individual had a problem with his temper, but during the second month of visits, the doctor advised him that no further sessions were required. Tr. at 106. Despite the visits to the psychiatrist and regular attendance at the court-ordered counseling, however, the individual’s marriage was still troubled, and in June 1996 he filed for divorce. Tr. at 109; DOE Ex. 7 at 7.

As a result of the arrest, the individual participated in a PSI conducted on XXXXXXXXXXX by a DOE personnel security specialist, and also agreed to be evaluated by a DOE consultant psychiatrist. DOE Ex. 7 at 22. DOE later received additional derogatory information about the individual from the Office of Personnel Management, and the individual participated in a second PSI conducted on XXXXXXXXXXX. DOE Ex. 8 at 3. During the first interview, the individual admitted to a problem in controlling his temper. DOE Ex. 7 at 7. He also discussed his relationships with his ex- wives in detail, and admitted using physical force on each woman at various times during the marriages, ranging from pushing to shoving to slapping. For instance, when asked if he beat his first wife, he replied: “ No. I, I pushed her, maybe shoved her or something out of the way or something like that, but I never beat her.” DOE Ex. 8 at 10. As regards his second wife, the individual

admitted that he struck her during an argument: “We were in a real heated argument about it and I told her just to shut-up and leave me alone and of course, like I said we were both arguing back and forth and she wasn’t shutting up and I reached across and I slapped her.” DOE Ex. 8 at 6. He also

admitted to shoving her and engaging in a physical struggle where they both fell and she broke her little toe. Id. at 6-8. In a discussion of the altercation with his third wife, the individual stated: “During the assault I pushed her, she fell down in the floor and I picked her up and she hollered at me and that was the end of it.” DOE Ex. 8 at 14. The individual claimed that prior to counseling,

he was not aware that this was inappropriate behavior. DOE Ex. 7 at 7. He testified that the counseling program enabled him to identify past mistakes and control his temper. Tr. at 101-102.

On April 2, 1997, a DOE consultant psychiatrist conducted a clinical interview and evaluation of the individual. Tr. at 14; DOE Ex. 9. The psychiatrist administered two screening psychological tests, the MMPI-2 and the Millon Clinical Multi-Axial Inventory (Millon)(2), as screening devices to collect information that was not uncovered during the clinical interview. Tr. at 15. After reviewing the results of the tests and conducting a brief personal interview, the psychiatrist concluded that the individual was “vague and evasive” throughout the interview, minimized a history of physical abuse of his wives, and was not honest. Tr. at 19-21, DOE Ex. 9. During the interview, the individual again admitted striking his second wife and pushing his third wife. According to the doctor, the results of the MMPI categorized the individual as intolerant, insensitive, and perceiving women as subservient. DOE Ex. 9. However, the psychiatrist found that because the individual “wanted to portray himself positively,” the scores on the test were within normal limits and did not show a psychiatric disorder. DOE Ex. 9 at 3. Nonetheless, despite normal scores on the tests, the doctor concluded that the individual was schizoid, isolated, and suffered from a personality disorder. Id. The psychiatrist did not, however, make a diagnosis under Criterion H of an illness or mental condition of a nature which may cause a significant defect in judgment or reliability. 10 C.F.R. § 710.8 (h).

B. Criterion L

The record contains ample evidence to support the charges under Criterion L that the individual was arrested for assault in 1996, had engaged in physical confrontations with his three ex-wives, and was evaluated by the DOE psychiatrist as a person who was not honest, reliable, or trustworthy. In the context of this case, I must determine whether the individual’s actions as described in the record constitute unusual conduct which tends to show that the individual is not honest, reliable, or trustworthy. For the reasons stated below, I have determined that the individual has engaged in domestic violence which tends to show that the individual is not honest, reliable, or trustworthy.

1. The Arrest

I find that the individual’s arrest for assaulting his wife clearly demonstrates unusual conduct that raises a serious question concerning his judgment and reliability. We have found in other cases that behavior that leads to an arrest demonstrates poor judgment on the part of the individual and the inability to control his actions. This brings the individual's reliability into question and raises a concern that in the future the individual may not obey laws, regulations or rules pertaining to security. See Personnel Security Hearing, Case No. VSO-0172, 27 DOE ¶ 82,762 (1998) (breaking the law raises concerns that the individual may not obey national security regulations); Personnel Security Hearing, Case No. VSO-0118, 26 DOE ¶ 82,769 (1997) (domestic violence arrest demonstrated poor judgment, questionable reliability, and raised security concern that individual engaged in criminal behavior by recklessly causing injury to another). Nonetheless, such behavior can be mitigated by evidence that the behavior was isolated and was not recent. See, e.g., Personnel Security Hearing, Case No. VSO-0183, 27 DOE ¶ 82,761 (1998) (security concern partially mitigated because arrest occurred 10 years ago); Personnel Security Hearing, Case No. VSO-0118, 26 DOE ¶ 82,769 (1997) (security concern mitigated by events occurring 20 years ago).

After a review of the record in this case, however, I find no evidence to mitigate the 1996 arrest. The arrest occurred recently and was not an isolated incident. Rather, the arrest involved criminal conduct stemming from an incident of domestic violence, conduct which the individual admitted had also occurred in the past with his previous spouses. Tr. at 121-122. See also DOE Ex. 7 at 5-8; (third wife); DOE Ex. 8 at 5-9 (second wife); DOE Ex. 8 at 10-13 (first wife), Even though the individual testified that he was not represented by an attorney in connection with the incident, there is no evidence that he denied in court that he assaulted his wife. Tr. at 99-100. Thus, I conclude that the individual’s behavior leading to his arrest is an example of unusual conduct that demonstrates that the individual lacks the judgment and reliability required of persons who hold access authorization.

2. Physical Confrontations with Former Wives

The individual confirmed the derogatory information in the Statement of Charges that he had engaged in physical confrontations with his three former wives. Tr. at 121-122. As mitigation, the individual offered testimony about his successful completion of the court-ordered six month counseling program for "men who have anger and violence issues." Individual’s Ex. 1. In response to a question about the effects of the program on his current behavior, he stated that “I was there for six months and after six months I was glad that I went. . . . And that’s what I really got out of the counseling is to realize that there is a possibility that I may lose my temper and then what should you do.” Tr. at 101. Nonetheless, after a review of the record, I conclude that successful completion of

this program has failed to mitigate the legitimate security concerns related to repeated instances of domestic violence that raise questions about the individual’s judgment and reliability.

This is not a case of a single, isolated indiscretion that occurred several years ago. Instead, it is accurate to describe the events of the individual’s marriages as reflecting a pattern of unusual conduct. There is evidence of serial spousal abuse committed by a mature adult. In such situations, where an individual repeats inappropriate behavior over a period of time, we have consistently found that the individual has engaged in unusual conduct and lacks the necessary judgment to hold an access authorization. See Personnel Security Hearing, Case No. VSO-0083, 25 DOE ¶ 82,807 (1996) (repeated unusual conduct by mature adult over period of time poses a serious security concern). Such a pattern can give rise to security concerns even if none of the individual incidents would be significant by itself. See Personnel Security Hearing, Case No. VSO-0183, 27 DOE ¶ 82,761 (1998) (no incident in pattern of unusual conduct can be viewed in isolation); Personnel Security Hearing, Case No. VSO-0118, 26 DOE ¶ 82,769 (1997) (current actions are part of a larger pattern of conduct).

I find that although there is some evidence in the record of rehabilitation or reformation, it does not overcome the security concerns raised by the individual’s behavior. First, while the individual was enrolled in the counseling program and concurrently visiting a local psychiatrist to improve his behavior, he and his wife not only continued to argue repeatedly, but she left the marital home. Tr. at 103. Second, I find it significant that the individual did not seek help for his behavioral problems voluntarily. He testified that he attended the domestic violence counseling program as a requirement of his sentencing in connection with the 1996 arrest and guilty plea. DOE Ex. 7 at 8. Thus, attendance in this program cannot be attributed to any personal desire on the part of the individual to acknowledge or improve his inappropriate behavior.(3) Third, I note that only one month after the counseling ended, the individual placed much of the blame for his third divorce not on his own behavior, but on the fact that his third wife had been single for approximately 20 years prior to their marriage. DOE Ex. 7 at 19. The individual stated that “our biggest problem was that she was more [set in her ways] than I was and we both realized that [the marriage] wouldn’t work.” Id. This does not bode well for his rehabilitation. The individual regularly attended a six month program that strongly encouraged participants to take responsibility for their actions in order to prevent future problems, yet the individual continued to minimize his role in his marital difficulties. DOE Ex. 7 at 11. Finally, at the hearing there was no testimony or report about the individual’s experience in the program from the individual's counselor or any other mental health professional, so I have no way to determine the individual's prognosis for change after completion of the program. There was no evidence from the local psychiatrist that the individual was rehabilitated from his prior behavior. We have previously found that credible testimony from a mental health professional that the individual has been rehabilitated is adequate evidence to overcome security concerns. See, e.g., Personnel Security Hearing, Case No. VSO-0187, 27 DOE ¶ 82,763 (1998). The statement in a letter from the counseling program that "[the individual] was an active and cooperative participant and fulfilled all the requirements for the program" is perfunctory in nature and does not rise to the level of evidence of rehabilitation or reformation required by Part 710. Individual’s Ex. 1. Thus, for the reasons set forth above, I find that the individual's completion of the requirements of a six- month counseling program is not adequate evidence of rehabilitation or reformation under 10 C.F.R. § 710.7 (c).

3. The Psychological Evaluation

In the Statement of Charges, DOE expresses concern based on the results of a psychological evaluation of the individual that was conducted by a DOE consultant psychiatrist. DOE Ex. 9. The DOE consultant psychiatrist concluded that the individual was “vague and evasive,” “a wife beater” and “probably not an honest person.” Id. According to DOE, this evaluation supports security concerns that the individual’s unusual conduct tends to show that he is not honest, reliable or trustworthy. I find that although the evaluation provided some support for DOE’s security concerns about the individual’s behavior,(4) the report also contained some statements that were inaccurate and others that could be interpreted in many ways. Thus, I am not persuaded that the results of the evaluation, standing alone, demonstrate dishonesty and unreliability on the part of the individual.

For example, the results of the evaluation state that the individual is “prone to develop physical complaints under stress,” and pointed to two knee surgeries and one colon surgery as an example. DOE Ex. 9 at 3; Tr. at 36. However, the individual testified credibly that the knee surgery was required because of cartilage damage to his knee, and that the colon surgery was a result of life- threatening gangrene in his colon. Tr. at 114. Thus, given testimony by the individual and the psychiatrist, there is no evidence that stress caused or exacerbated these conditions. In addition, the psychiatrist testified that some of the words he used to describe the individual were computer- generated as a result of the individual’s response to the test, and did not reflect his personal thoughts on the individual’s personality. For instance, the report stated that the individual is “isolated,” notes that he is more withdrawn than the average person, and enjoys fishing, which, according to the psychiatrist “is, by and large, a lonely activity.” Tr. at 40. This description was not presented as a positive personality trait in the report. However, several of the individual’s fishing buddies testified at the hearing, and testified credibly as to their strong friendships with the individual. Tr. at 44, 72, 85, 114. On questioning, the psychiatrist then admitted that “[t]here is nothing necessarily wrong with staying to yourself.” Tr. at 41. Finally, the evaluation report stated that the individual may have participated in running whiskey into a “dry” area of the state at a time when the individual would have been a young child. Tr. at 28-29. The psychiatrist testified that during the interview the individual claimed to have transported liquor to dry counties “in his earlier years.” Id. However, no substantiation of these underlying events was ever offered. At the hearing, the psychiatrist admitted that a child could not have participated in such activities, and the individual denied ever transporting alcohol illegally. Tr. at 28-29, 115.

Therefore, I find that the DOE psychiatrist’s report was not persuasive as to the individual’s honesty, reliability, or trustworthiness. Nonetheless, there is still sufficient evidence in the record to support my finding that the individual has engaged in unusual conduct which tends to show that the individual is not honest, reliable, or trustworthy.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. § 710.8 (l) in suspending the individual’s access authorization. It is my opinion that, within the meaning of that provision, the individual has “[e]ngaged in [] unusual conduct . . . which tend[s] to show that the individual is not honest, reliable, or trustworthy . . . .” Even though there is no evidence that the individual's behavior has compromised the national security in the past, and there was testimony that he has an excellent work record, I believe that DOE's concern about his future behavior warranted suspension of his access authorization. See Personnel Security Hearing, Case No. VSO-0183, 27 DOE ¶ 82,761 (1998) (testimony of supervisor as to individual’s reliability insufficient to mitigate security concerns); Personnel Security Hearing, Case No. VSO-0118, 26 DOE ¶ 82,769 (1997) (co-worker testimony alone not sufficient to demonstrate reliability). The individual has failed to present adequate mitigating factors or circumstances to erode the factual basis for these findings or otherwise alleviate the legitimate security concerns of DOE. In view of this criterion 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 Avenue, 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 the purpose 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

Valerie Vance Adeyeye

Hearing Officer

Office of Hearings and Appeals

Date: July 9, 1998

(1) 1On May 7, 1998, DOE counsel and counsel for the individual jointly requested an extension of the hearing date beyond the regulatory limit of 90 days after the request for hearing was filed. 10 C.F.R. § 710.25 (g). The Director of OHA granted the request on May 8, 1998.

(2) 2The MMPI-2 is a long series of computer-administered true/false questions designed to uncover personality traits. The Millon is similar, but focuses on personality disorders. The psychiatrist based his final diagnosis of the individual on the psychiatrist’s “clinical impression” from the interview, supplemented by the test results. Tr. at 15-17.

(3)However, in fairness to the individual, I note that after his wife suggested in June 1996 that he visit a local psychiatrist for help with his behavior, he attended the private sessions voluntarily. DOE Ex. 7 at 12-14.

(4)The individual at times was evasive in his responses during the second PSI. DOE Ex. 9 at 9-10, 12-15. This is the only PSI that the psychiatrist reviewed prior to conducting his clinical interview. Tr. at 14-15.