Case No. VSO-0211, 27 DOE ¶ 82,782 (H.O. Goldstein November 23, 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.

November 23, 1998

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: June 2, 1998

Case Number: VSO-0211

A Department of Energy Operations Office (the DOE office) suspended the access authorization of XXXXX XXXXX XXXXX (hereinafter referred to as "the individual") 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)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

On April 22, 1998, the DOE office issued a Notification Letter informing the individual that his access authorization had been suspended because information in the possession of the DOE created substantial doubt concerning his eligibility. The specific information was set forth in an enclosure to the Notification Letter. In that enclosure, the DOE office stated that this information falls within the purview of four of the criteria set forth in 10 C.F.R. § 710.8, subsections 710.8(f), (h), (j) and (l).

First, the DOE office invoked 10 C.F.R. § 710.8(f) (Criterion F) on the basis that the individual “misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire [PSQ], a Questionnaire for Sensitive Positions [QSP], a personnel qualifications statement, a personnel security interview [PSI], written or oral statements made in response to

official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f). The DOE specified 22 alleged falsifications involving PSQs, QSPs, Questionnaires for National Security Positions (QNSP), and PSIs.(2)All of these instances concerned the individual’s illegal drug use between 1974 and 1989 of marijuana, cocaine, amphetamines, cocaine, “crank” (a methamphetamine) and hashish.

Second, the DOE office invoked Criterion H on the basis 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 Notification Letter specified that the individual was referred to a DOE consultant psychiatrist, who performed a psychiatric evaluation of the individual. In his November 17, 1997 report of this evaluation, the DOE consultant psychiatrist diagnosed the individual with a number of psychiatric conditions, including alcohol abuse. The DOE consultant psychiatrist also listed the individual’s past history of substance abuse and found inadequate evidence of rehabilitation or reformation of the individual’s substance abuse problems. Further, the DOE consultant psychiatrist diagnosed the individual with dysthymia and a personality disorder (mixed or Not Otherwise Specified (NOS) suspected). All of these diagnoses led to the DOE consultant psychiatrist’s ultimate opinion that the individual has a mental condition which “may cause a significant defect in judgment and reliability.”

Third, the DOE office invoked Criterion J on the basis that the individual has “been, or is, a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” The DOE office noted the DOE consultant psychiatrist’s finding that the individual’s continued use of alcohol and lack of reformation and rehabilitation brings him within the terms of this criterion.

Fourth, the DOE office invoked Criterion 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 he 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 him to act contrary to the best interests of the national security." In this regard, the Notification Letter specified a number of incidents, including the following: the individual’s poor judgment regarding substance use; his 1977 arrest for possession of marijuana with intent to distribute; his leaving a job because of one and possibly two failed drug tests; his decision to begin drinking again in 1996; his failure to give assurance that he would not use drugs while drinking; his desire to keep his intravenous drug use a secret; his failure to fully disclose his marijuana and other drug use; his failure to acknowledge his past drug treatment; and his history of lying to the DOE, the Office of Personnel Management (OPM) and prospective and actual employers.

In a letter forwarded to the DOE Office of Hearings and Appeals (OHA), the individual requested a hearing in this matter. 10 C.F.R. § 710.21(b). At the hearing, the DOE Counsel called three witnesses: the DOE consultant psychiatrist, the DOE security specialist, and the individual. The individual called six witnesses: his psychologist, his mother, two supervisors and two friends. 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 and shall be cited respectively as "DOE Ex." and “Indiv. Ex.”

II. Findings of Fact and 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 apply a different standard, one designed to protect national security interests. A hearing in this type of proceeding 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 identified derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting 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 access authorization. SeeDepartment of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of access authorizations 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) (strong presumption against the issuance of access authorization). 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. 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 a 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).

A. Criterion J, Alcohol Use

1. Derogatory Information

In the DOE consultant psychiatrist’s November 17, 1997 report, he found that the individual is alcohol abusive and because he has not responded to past treatment, he is without adequate evidence of reformation and rehabilitation. DOE Ex. 22 at 16; see 10 C.F.R. § 710.8(j). The derogatory information concerning the individual’s substance use is essentially undisputed. However, the individual contends that he is currently rehabilitated.

Because the individual’s drug and alcohol history are intertwined, a short summary of that history is necessary. The individual began using cocaine and marijuana while he was in high school in the mid-1970s. This cocaine use continued in the mid-1980s, including intravenous use of both cocaine and a methamphetamine. In 1987, the individual was treated as an in-patient at a drug treatment facility for twenty-eight days, and followed that treatment with 300 Narcotics Anonymous (NA) meetings. Tr. at 71; 5/29/97 PSI Tr. at 22; 1993 PSI Tr. at 9-10, 32. At a party in 1989 following the ending of a job, he consumed alcohol and used cocaine for the first time since his 1987 treatment. 5/29/97 PSI Tr. at 23-24. The individual states that he has not used illegal drugs since that occasion. 5/29/97 PSI Tr. at 24-25, 41.

In 1993, the individual told the DOE office that he did not plan to consume alcohol in the future because he probably had an alcohol problem. 1993 PSI Tr. at 6, 12-14. The individual has not had a sponsor in the NA program and stated that he followed NA’s 12-step program half-heartedly. 1993 PSI Tr. at 9-10. In 1995, the individual decided to begin drinking again because he wanted to fit in with his friends and feel normal. 5/29/97 PSI Tr. at 50. He indicated he would drink two to four beers at a time when bowling. 5/29/97 PSI Tr. at 51; see also DOE Ex. 22 at 4. He said he was intoxicated or tipsy a few times in the year since he had begun drinking again. 5/29/97 PSI Tr. at 50; Tr. at 91.

At the hearing, the DOE consultant psychiatrist testified that he was primarily concerned that after approximately six years of sobriety, the individual had begun consuming alcohol again about two years ago. The DOE consultant psychiatrist felt that because of the individual’s past extensive history with drugs and alcohol, any alcohol consumption is extremely risky behavior for the individual. Tr. at 14. The DOE consultant psychiatrist’s opinions are supported by many of the individual’s own statements. For instance, the individual has said that he began taking amphetamines because he wanted to be able to stay awake and continue to drink alcohol. 5/20/97 PSI Tr. at 20. The individual has also attempted to use alcohol to excuse his use of speed to the DOE because speed was “just . . . some stupid thing I’d do when I’d get drunk . . . .” 1993 PSI Tr. at 30. The individual quit drinking in 1989 because he had recognized that when he was drinking he was not able to decline to use illegal substances. 5/20/97 PSI Tr. at 12-13, 26. For example, “I did stupid things. . . .I didn’t have control . . . I’d go to parties and I couldn’t say ?no’ and something [illegal drugs] . . . was passed to me . . . .” 5/20/97 PSI Tr. at 26.

The DOE psychiatrist, in examining this history, found that the individual’s past substance abuse treatment had not convinced the individual of the importance of not consuming alcohol. As the psychiatrist described at the hearing, the individual has had a continuing need to drink in order to be accepted by his peers and then is extremely likely to use drugs if offered in order to be even more accepted. Tr. at 14. He believes that this pattern originated with the individual’s dysthymia, a chronic form of low-grade depression. Tr. at 16-17. The psychiatrist also testified that the individual did not learn from his previous drug treatment “that alcohol . . . destroys him.” Tr. at 15.

2. Mitigating Information

The individual testified at the hearing that he stopped consuming alcohol about three months before the hearing, when he began seeing a psychologist. Tr. at 86-87, 103-04. He has had approximately 19 appointments with that psychologist during those three months. Tr. at 116-17. The individual believes that he is no longer engaged in “self-defeating” behaviors, but instead feels happy enough with his life and his hobbies, golf and bowling, that he will not need to resort to illegal drugs in the future. Tr. at 87-88. However, he still “somewhat” believes that he has never been a “true alcoholic.” Tr. at 72. He also testified that he did not believe he could financially afford to continue seeing his psychologist and did not state any plans to attend further NA meetings. Tr. at 90.

The individual’s psychologist testified that he agrees with the DOE consultant psychiatrist that the individual needs to maintain his abstinence. Tr. at 108. However, he feels that the individual’s alcohol problem will be resolved when the individual fully overcomes his avoidant personality disorder, which should occur after a further six months of therapy. Tr. at 108-09. He also said that following the further six months of therapy, the individual would need to continue to see him once a month for maintenance therapy. Tr. at 109. The psychologist also testified that the individual’s chances of returning to illegal drugs again are currently quite low because he believes the individual voluntarily decided to disclose his full drug history to the DOE, indicating a true desire for change. Tr. at 107-08.

After hearing about the extent of the individual’s recent counseling and that he ceased consuming alcohol three months prior to the hearing, the DOE consultant psychiatrist testified that he also did not find the individual to be rehabilitated from his alcohol problem. He indicated he would not find the individual to be rehabilitated from his substance use problems until two or three years of abstinence had passed. Tr. at 94.

Neither the DOE consultant psychiatrist nor the individual’s psychologist believe the individual to be rehabilitated from his alcohol use disorder. Because their opinions appear to be correctly grounded in the facts regarding the individual’s condition, I find that there is an adequate basis for the experts’ opinion on rehabilitation. I therefore find that the individual has not resolved the Criterion J concern identified by the DOE office.

B. Criterion H, Mental Disorders

In his November 17, 1997 report, the DOE consultant psychiatrist diagnosed the individual with a number of mental disorders including, among other things, alcohol use disorder, dysthymia, personality disorder not otherwise specified (with avoidant personality traits). He also found that these disorders may cause a significant defect in the individual’s judgment and reliability. See 10 C.F.R. § 710.8(h). As discussed above, the DOE consultant psychiatrist concentrated in his hearing testimony primarily on the individual’s misuse of illegal substances and his failure to be rehabilitated from his alcohol use disorder. He also opined that the individual’s dysthymia created the individual’s substance abuse problems. Tr. at 16-17.

In contrast, the individual’s psychologist believes that the core of the individual’s mental problem is an avoidant personality disorder. Tr. at 99, 103. This disorder is marked by a pervasive pattern of social inhibition, feelings of inadequacy, and hypersensitivity to negative evaluation. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, at 662. The psychologist testified that the individual’s avoidant personality disorder constitutes a mental condition or illness which causes or may cause a defect in the individual’s judgment or reliability. Tr. at 117. The psychologist used an example at the hearing to explain that the disorder may cause the individual to misinterpret even seemingly straightforward questions. See Tr. at 90, 95-96, 106-07. The psychologist feels that the individual has made progress towards recognizing this disorder in himself, but he is still approximately six months away from rehabilitation. Tr. at 101, 109.

Thus, both medical experts agree that the individual has at least one current mental condition that could cause a defect in his judgment or reliability and that he is not yet rehabilitated from his condition at this time. Their disagreement as to the cause or nature of his condition is unimportant for purposes of this proceeding. Because their opinions appear to be correctly grounded in the facts regarding the individual’s condition, I find that there is an adequate basis for the experts’ opinions. I am therefore unable to conclude that the individual has mitigated the Criterion H security concerns of the DOE.

C. Criterion F, Falsification

Criterion F concerns information that indicates an individual “[d]eliberately misrepresented, falsified, or omitted significant information” during an official inquiry concerning his eligibility for a clearance. The individual does not dispute that there are 22 major discrepancies concerning his drug and alcohol history on 14 forms and interviews between 1980 and 1997, and he concedes the accuracy of the information in the Notification Letter concerning this charge. However, the individual attempted to mitigate the security concerns presented by offering the following information.

First, at the hearing, he presented his psychologist, who believes that the individual’s avoidant personality disorder has caused him to give incorrect answers. Tr. at 105-06. In addition, although the DOE consultant psychiatrist disagreed that a personality disorder was the cause of the individual’s memory and reasoning difficulties, the psychiatrist opined that the individual’s past substance abuse may have had that effect. Tr. at 19. I find that neither expert’s testimony fully mitigates the Criterion F charge. While it is possible that some details may have escaped the individual’s memory due to either substance abuse or another mental disorder, the individual has told many falsehoods that he later acknowledged to be intentional. These include the following: stating during the May 20, 1997 PSI that he had never injected any drugs, never failed any drug tests, and only used cocaine twice; his assertions during the May 29, 1997 PSI and the hearing itself that he began using intravenous cocaine on his own and continued using it on his own; and his 1997 assertion to the OPM investigator that he had used no illegal drugs since 1980. Tr. at 63; DOE Exs. 27 and 29; 5/29/97 PSI Tr. at 12; 5/20/97 PSI Tr. at 23, 25, 28. The individual himself indicated that his “survival instincts” to keep his job prevented him from telling the truth. Tr. at 243. This testimony, in addition to the self-serving nature of the falsifications, establishes that the great majority of these statements were intentional attempts to hide the extent of his drug history from the DOE.

Second, the individual argues that these falsifications do not completely reflect his behavior or character. He brought forward the testimony of five witnesses who describe him as trustworthy and submitted documents in support of his good employment and credit records. See Indiv. Ex. 1. I am generally convinced that the individual has good employment and credit records. It is clear that the individual’s friends and supervisors who testified believe him to be an honest person. However, they did not appear to be aware of the facts set forth above regarding the extent of the individual’s drug use and history of falsifications, and this evidence does not outweigh my other findings regarding the individual’s honesty. See Tr. at 190, 201, 209, 221, 236.

Third, the individual argues that because he disclosed his falsifications voluntarily, the security concerns presented should be at least partially mitigated. See Tr. at 168. Voluntary disclosure is an important factor. However, I do not believe that it was the individual’s conscience that prompted him to come forward after his May 20, 1997 PSI and disclose his falsifications. That May 20, 1997 PSI was requested by a DOE Security Specialist because of the large amount of discrepant information she had discovered. 5/20/97 PSI Tr. at 5. Following that PSI, the individual requested another PSI, which occurred on May 28, 1997. During the May 28, 1997 PSI, the individual again did not disclose any further drug use, but instead merely repeated his belief, contrary to evidence otherwise, that he had never used illegal drugs while holding a clearance. 5/28/97 PSI Tr. at 1, 6. Following that May 28, 1997 PSI, the individual requested another PSI which occurred the following day. I believe that the individual requested the final May 1997 PSI not because his conscience was bothering him but because the tough questioning of the DOE Security Specialist indicated to him that his answers in the previous two interviews had failed to resolve the discrepant information and that he was “getting caught in lies.” 5/29/97 PSI Tr. at 3.

The individual’s admitted falsifications are part of a pattern of behavior raising a serious question about the individual’s honesty. The record does not establish that reformation and rehabilitation have occurred. Many of the falsifications occurred recently, during OPM interviews and two PSIs in 1997 and at the hearing of this matter. For example, in the May 29, 1997 PSI, in which the individual alleged he finally decided to disclose his full history, the individual stated that he learned to use intravenous cocaine alone. 5/29/97 PSI Tr. at 4, 12. He repeated this statement at the hearing and then admitted, after questioning, that it was a falsification. Tr. at 63.

Most importantly, the individual does not appear to understand the significance of his falsifications. During the May 29, 1997 PSI, he called this seventeen year period of numerous discrepancies, “little white lies.” 5/29/97 PSI Tr. at 58. However, in every one of the six PSIs, all of which concerned his drug history, the DOE security specialist stressed to him the importance of telling the truth. After considering the totality of the record and the large amount of derogatory information on falsification, I cannot conclude that the individual has resolved the Criterion F concern.

D. Criterion L, Unusual Conduct

The DOE office asserts that the individual has engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy, or which furnishes reason to believe that he 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 Notification Letter, and will not be repeated here.

A pattern of dishonest conduct raises a very serious security concern. In this case, there is a seventeen-year period in which the individual has given false information to the DOE. This represents a disturbing pattern of unreliability and dishonesty. There is some favorable evidence concerning the individual, e.g., his supervisors’ testimony that the individual is dependable and the individual’s assertion that he will never disclose classified material. The individual has also apologized for his actions and stated that he takes full responsibility for these actions. Tr. at 243. Nevertheless, the evidence he presented is insufficient to resolve the concerns created by the overwhelming amount of derogatory information in the record. I therefore find that the individual has not sufficiently mitigated the Criterion L concern.

III. Conclusion

As explained in this Opinion, I find that DOE properly invoked 10 C.F.R. §§ 710.8(f), (h), (j) and (l) in denying access authorization to the individual. It is my opinion that, within the meaning of those provisions, the individual has: (1) deliberately misrepresented, falsified, or omitted significant information from a PSQ, QSP, PSI and written and oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization, and proceedings conducted pursuant to 10 C.F.R. § 710.20 through § 710.31; (2) been diagnosed with a mental condition of a nature which causes, or may cause, a significant defect in judgment or reliability; (3) been diagnosed as alcohol abusive without adequate evidence of reformation or rehabilitation; and (4) 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 or exploitation. The individual has failed to present adequate evidence of mitigation to alleviate the security concerns of DOE. In view of these criteria and the record before me, I cannot find that restoring access authorization to the individual would not endanger the common defense and security and would be consistent with the national interest. Accordingly, I find that 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

Dawn L. Goldstein

Hearing Officer

Office of Hearings and Appeals

Date: November 23, 1998

(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.

(2)The dates of the alleged falsifications consist of the following: 1980, 1991, 1993, May 20, 1997 and May 28, 1997 PSIs; a 1984 PSQ; May 29, 1987 (redated June 12, 1989), 1991, 1992, 1993, 1994, and 1995 QSPs; and April 27, 1996 and December 2, 1996 QNSPs.