Case No. VSO-0223, 27 DOE ¶ 82,786 (H.O. Goering December 17, 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.

December 17, 1998

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:July 24, 1998

Case Number:VSO-0223

This Opinion concerns the eligibility of XXXXX (the Individual) to hold an access authorization(1) 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.” The Individual’s access authorization was suspended by the Manager of a Department of Energy (DOE) Operations Office pursuant to the provisions of Part 710. Based on the record before me, I am of the opinion that the Individual’s access authorization should not be restored.

I. Background

A. Procedural History

The Individual is an employee of a contractor at a DOE facility. After being informed that the Individual had been arrested March 28, 1997, on suspicion of sexual assault and other charges, DOE Exhibit 25, the Operations Office conducted two Personnel Security Interviews (PSIs) with the Individual. See DOE Exhibits 15, 20. Since the security concern remained unresolved after the PSIs, the Operations Office requested that the Individual be interviewed by a DOE consultant psychiatrist (DOE psychiatrist). The DOE psychiatrist interviewed the Individual on February 23, 1998, and issued an evaluation to the DOE on February 28, 1998, in which he concluded that the Individual suffered from Adjustment Disorder and Antisocial Personality Disorder. DOE Exhibit 12 at 13. The DOE psychiatrist also found that the Individual was “a user of alcohol habitually to excess and suffering with alcohol dependence . . . .” Id. On March 13, 1998, a jury found the Individual guilty of the crimes of Harassment, Lewd or Indecent Act, and Disseminating Harmful Material to Minors. DOE Exhibit 1.

The Operations Office ultimately determined that the derogatory information concerning the Individual created a substantial doubt about his eligibility for an access authorization, and that the doubt could not be resolved in a manner favorable to the Individual. Accordingly, the Operations Office suspended the Individual’s access authorization, and obtained authority from the Director of the Office of Safeguards and Security to initiate an administrative review proceeding.

After the Manager of a DOE Operations Office has authorized the suspension of an individual’s access authorization, and has obtained the authority to conduct an administrative review proceeding, the individual is notified of the basis for the suspension and provided “the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; (ii) By personal appearance before a Hearing Officer (a 'hearing').” 10 C.F.R. §§ 710.10(b), (d), 710.21(a), (b)(3). “[I]f a hearing is requested, the individual [has] the right to appear personally before a Hearing Officer; to present evidence in his own behalf, through witnesses, or by documents, or both; and, . . . to be present during the entire hearing . . . .” 10 C.F.R. § 710.21(b)(7). The 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).

The administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See DOE Exhibit 4; 10 C.F.R. § 710.21. That letter informed the Individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter included a statement of that derogatory information and informed the Individual that he was entitled to a hearing before a Hearing Officer in order to resolve the substantial doubt regarding his eligibility for access authorization. The Individual requested a hearing, and the DOE forwarded the Individual’s request to the Office of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter. At the hearing convened pursuant to 10 C.F.R. § 710.25(e) and (g), the DOE psychiatrist, two of the Individual’s co-workers, and the Individual testified. The DOE Counsel submitted 56 exhibits and the Individual submitted 9 exhibits prior to the hearing.

B. The Basis for the DOE’s Security Concern

The derogatory information cited in the Notification Letter issued to the Individual falls within the ambit of three regulatory criteria, paragraphs (h), (j) and (l) of 10 C.F.R. § 710.8. DOE Exhibit 4. In the Notification Letter, the DOE stated that the information indicated that the Individual (1) “has an illness or mental condition of a nature which in the opinion of a board-certified psychiatrist, causes, or may cause, a significant defect in his judgment or reliability;” (2) “has been, or is a user of alcohol habitually to excess, or has been diagnosed by a board-certified psychiatrist as alcohol dependent or as suffering from alcohol abuse;” and (3) “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, exploitation, or duress which may cause him to act contrary to the best interests of national security.” Id.; see 10 C.F.R. § 710.8(h), (j), (l).

“The decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the 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 considering 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 consideration of all the relevant information in the record, I conclude for the reasons set forth in this Opinion that the concern raised by the derogatory information regarding the Individual remains unresolved. Because of this unresolved concern, it is my opinion that the Individual’s access authorization should not be restored.

II. Analysis

A. Security Concerns Cited Under 10 C.F.R. § 710.8(h)

Criterion (h) pertains to information that a person has “[a]n illness or mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). As noted above, the DOE psychiatrist concluded that the Individual suffered from Adjustment Disorder and Antisocial Personality Disorder. DOE Exhibit 12 at 13.

In his evaluation, the DOE psychiatrist stated his opinion that the Individual “has an adjustment reaction with depression based on his feeling depressed and tense, accompanied by a sleeping disorder (middle insomnia).” Id. at 12. At the hearing, the DOE psychiatrist elaborated on his diagnosis of Adjustment Disorder. “Briefly, he was having depression and distress of the legal problems. Depression under that stress is considered an adjustment disorder as opposed to a major depression or a chronic dysthymic disorder. The expectation is that when that stress is relieved, the depression will diminish.” Tr. at 25.

In addition, the DOE psychiatrist found in the Individual the following characteristics of an antisocial personality disorder: “(1) he fails to conform to social norms with respect to lawful behaviors; (2) he is deceitful with repeated lying; (3) he had reckless disregard for the safety of others; (4) though he has worked consistently over the past twenty years, he has shown irresponsibility and poor work habits prior to starting [his current job]; (5) and he shows evidence of a probable conduct disorder prior to age 18 as evidenced by fighting, promiscuity and truancy from school.” DOE Exhibit 12 at 12. As the DOE psychiatrist explained at the hearing, “Personality disorders are pervasive, long-standing, integral disorders that are disabling with time and that don't diminish and don't go away with time.” Tr. at 25-26.

The DOE psychiatrist concluded in his evaluation,

[The Individual] has an illness or mental condition which causes a significant defect in judgment or reliability . . . .

. . . .

I believe that this subject’s depression will worsen as he approaches his court date and worsen again should there be a bad outcome to his trial or the Department of Energy determination. Should these have favorable outcomes, his depression will lessen. I believe that his personality disorder is making it very difficult for him to deal with his stressors. The adjustment disorder and personality disorder go hand in hand. In order to deal with ongoing and increasing depression, this subject will resort to coping mechanisms that he has learned, which include disregard for social norms, deceitfulness and disregard for others which are hallmarks of his personality. This subject’s comorbid conditions put him at risk for deficits in judgment and reliability.

DOE Exhibit 12 at 13-14.

Based on the testimony of the DOE psychiatrist and his written evaluation, I find that the factual basis cited for his diagnoses is well documented with reference to the history the patient related to the psychiatrist in his interview. See Exhibit 12 at 4-8. One of the DOE psychiatrist’s observations that was disputed at the hearing was that the Individual was deceitful in the psychiatric interview. The DOE psychiatrist testified that “[t]here were just too many” instances where the Individual responded to questions by stating that he did not recall. Tr. at 51.

I have six categories, and in each category there's more than one reason -- more than one example. There are just too many examples.

Having done what could be 500 to 1,000 independent evaluations and having done perhaps 5,000 or 10,000 of the examinations of other people, it's my opinion that the amount of times that he could not remember was way out of the norm. Each time he couldn't remember, it was self-serving.

It's multiple discrepancies regarding alcohol use, multiple discrepancies regarding legal history, the single discrepancy on the marijuana, the legal problems, the financial problems. Across the board, everything that might have been damaging to him, he only told me after he knew I knew, he only told me what he knew was in the record. And sometimes after I told him that it's in the record, he continued to deny it. That's very typical to someone who's trying to protect themselves and trying to appear better than they are.

Id.

The DOE psychiatrist stood by his conclusion under cross-examination by the Individual’s attorney.

Q So it's deceitful in the sense that he had memory lapses, that you thought that he should remember; is that right?

A If he's had this many memory lapses then the differential diagnosis on that would be deceitfulness, is what I'm coming up with, or problem with his long-term memory.

Q That wouldn't be deceitfulness?

A No. That would be dementia, which he doesn't have. So I'm accounting for his long-term memory problems as deceitfulness and not dementia. Dementia would be a problem with judgment and reliability beyond the scope of deceitfulness.

Id. at 39-40.

I find entirely credible the DOE psychiatrist’s rationale for concluding that the Individual was being deceitful in the psychiatric interview. In addition to the numerous instances cited where the Individual stated he could not recall, the psychiatrist pointed to the fact that when asked whether he had ever used marijuana, the Individual responded that he had not. Tr. at 19-20. When the DOE counsel asked him at the hearing to explain this response, the Individual stated,

That's because he -- well, the way he was going about it, trying to make me be a marijuana user. No, I know I don't [know] how to smoke marijuana, so I said no. It was the whole question. That's why lots of things didn't get answered and everything, because of his attitude.

Q So if he had just basically asked if you had ever used marijuana you would have said yes.

A Yes, I'd tried it.

Q But if he said you're a marijuana user you would have said no?

A Right.

Id. at 98. This explanation is inconsistent, however, with the DOE psychiatrist’s contemporaneous written evaluation, in which he states,

I then asked him again about marijuana and he again denied ever using. When I said that the record reflects that he had told a counselor that he used marijuana, he said that must be a mistake because he never used marijuana. I asked him again and he still continued to deny any usage or experimentation.

DOE Exhibit 12 at 5.

In addition to the factual observations of the DOE psychiatrist being well supported by the record, there was no other expert testimony contradicting the DOE psychiatrist’s interpretation of those facts in reaching his diagnoses, though the Individual’s attorney raised certain issues with regard to the DOE psychiatrist’s conclusions. In cross-examining the DOE psychiatrist, the Individual’s attorney pointed out that the Individual’s work-related problems and financial instability were not recent. Tr. at 26-27. The DOE psychiatrist acknowledged that these facts would somewhat mitigate those particular criteria of a personality disorder, id., but stated, “The history of antisocial personality goes back to adolescence or even childhood with difficulties in conduct problems starting back then. The fact that things get a little more stable is somewhat mitigating but doesn't take away the inherent difficulties of the personality disorder.” Tr. at 27. When the Individual’s attorney asked the DOE psychiatrist whether he could better diagnose the Individual if he had spent more time with him, the DOE psychiatrist responded that “there was enough information in the two and a half hours to come to firm, clear, and concrete diagnosis.” Tr. at 24-25. Taking into consideration the mitigating factors the Individual’s attorney raised, I am persuaded by the conclusion of the DOE psychiatrist that the Individual has an illness or mental condition that causes a significant defect in judgment or reliability.

B. Security Concerns Cited Under 10 C.F.R. § 710.8(j)

Criterion (j) pertains to information that a person has “[b]een, 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.” 10 C.F.R. § 710.8(j). The DOE psychiatrist found in his February 1998 evaluation that the Individual

clearly uses alcohol habitually and to excess and is alcohol dependent. The subject has had several courses of treatment and several periods of abstinence. He had his most recent relapse continuing through May 1997.

. . . .

He is currently in early full remission. By his own record, he has not used and has not shown signs of alcohol dependence for a period greater than one month but less than twelve.

DOE Exhibit 12 at 11.

The DOE psychiatrist’s conclusion regarding alcohol dependence was based on his opinion that the Individual met the following criteria:

(1) He shows tolerance by using markedly increased amounts of the substance to achieve intoxication. (2) He uses alcohol in larger amounts over a longer period of time than was intended. (3) He has been unsuccessful in attempts to cut down. (4) He has used despite occupational responsibilities elsewhere. (5) He uses despite knowledge of having a persistent or recurrent physical and psychological problem exacerbated by alcohol.

Id.

The Individual has not disputed his history of alcohol use as reported in the DOE psychiatrist’s evaluation. Specifically, this history includes alcohol treatment on at least four occasions in the past, all prior to his most recent return to drinking. DOE Exhibit 12 at 4. The history taken by the DOE psychiatrist also mentions that the Individual “has serious medical problems secondary to drinking, including pancreatitis. He has said that he could die if he continues to drink.” Id. I see no evidence, therefore, that contradicts the DOE psychiatrist’s conclusion that the Individual has in the past been alcohol dependent.

The issue that the Individual contests is whether he has been rehabilitated from his past problems with alcohol. When questioned by his attorney, the Individual described his current state as follows:

Q So you don't feel now that you're an abuser of alcohol or that you drink alcohol excessively?

A No.

Q Even though you may have drank it excessively at some time?

A In my early days, yeah.

Tr. at 86.

During his February 1998 psychiatric interview, the Individual stated that he had not had a drink since his birthday on May 14, 1997. DOE Exhibit 12 at 4. In his evaluation, the DOE psychiatrist stated that the Individual’s alcohol dependence was in “early full remission.” At the October 1998 hearing, the Individual testified that he has not had a drink in over one year and that he last drank on May 14, 1997. Tr. at 79, 82, 107. The DOE psychiatrist testified at the hearing that

if he says he hasn't been drinking and there's no evidence to the contrary, I'd have to say that he was not. If he hasn't drank and isn't showing signs or symptoms of alcohol dependence, physiologically or obsessionally, for a period of 12 months, then he would be in alcohol dependence full remission because it's been more than a year. That would be according to the Diagnostic and Statistic Manual that we use. There's no information in that regarding rehabilitation and reformation.

Id. at 49. When asked for a definition of rehabilitation, the DOE psychiatrist testified,

Rehabilitation depends more on the person. It's a change in the way a person's living. You go from using, lying, and unstable to abstaining, stable, and honest. And it's a lengthy process, and the length of time really depends on the person, how much he's drinking, how much he has drank in the past, what his success has been in the past.

So, for example, if a person has had a previous record where he drank and then he stopped drinking for a year and started again, it would be hard to say the next time they stopped for one year whether they were in -- you know, whether you could consider them rehabilitated because they'd already reached that juncture before and relapsed.

Tr. at 17-18. As for where the Individual stands in the process of rehabilitation, the DOE psychiatrist stated his prognosis was “guarded.” Tr. at 49.

I don't even have a basic answer to the question of whether or not he intends to stay sober. I don't know why he's sober at this point. I don't know whether he's gone through any recovery program. I don't know whether he's being -- even if he's being honest about his alcohol usage, he has to be honest about his alcohol usage in the past, also.

So, basically, he would have had to have changed dramatically since February 1998 in order to consider the process of rehabilitation and reformation. If he did start that as of February 28, if he decided, Yes, I saw [the DOE psychiatrist] and honesty's important, I'm going to start being honest, that really only gives him six months -- eight months of honesty, even if he's abstained.

He's had previous failed attempts at abstention. Based on his difficulty with his memory, or deceitfulness, I'm not able to ascertain how well he's done in the past. I do know that he's had four failed attempts at treatment. That would put him on a track that would require more than one year of abstinence before I'd consider that he was out of the woods.

Id. at 49-50.

The Individual has submitted documentation of a court-ordered 12-week alcohol treatment program he completed in October 1998. Individual’s Exhibits 5, 6. However, this documentation provides no opinion of the counselor who conducted the program as to the Individual’s progress or prognosis. In fact, the only comment noted on the Discharge/Referral Summary submitted by the Individual is “ATTENDED REQUIRED SESSIONS--MINIMAL PARTICIPATION.” Individual’s Exhibit 5. I am left then with the DOE psychiatrist’s testimony as the only expert opinion as to the Individual’s current state of rehabilitation from alcohol dependence. Based on this testimony, I cannot find that the Individual is “out of the woods” with respect to the possibility of another relapse into alcohol use.

More troubling yet is evidence in the record, not discussed at the hearing, that the Individual consumed alcohol less than eight months ago. The Individual submitted as one of his exhibits a report of a polygraph examination he took on May 14, 1998. Individual’s Exhibit 2. Among other things, that report states that the Individual was placed on probation on April 13, 1998, and that “[r]egarding probation issues, [the Individual] reported drinking two beers on 5/12/98.” Id. at 4. The Individual also completed a questionnaire at the time of the polygraph examination. This signed questionnaire was attached to the report of the examination submitted by the Individual prior to the hearing. One page of the questionnaire listed 38 behaviors and asked, “Since 4/13/98, have you engaged in any of the following behaviors.” Next to “Alcohol usage” on the list, the Individual checked yes and indicated that the last occurrence was “5-98.” Individual’s Exhibit 2. Another page of the questionnaire, entitled “Parole & Probation Issues,” asked the Individual whether, since April 13, 1998, he had “[d]runk any alcoholic beverage? (If so, how much, frequency, last usage).” The Individual answered, “YES 5-12-98 2 BEERS.” Id.

Although it is unfortunate that the Individual was not confronted at the hearing with, and presented with an opportunity to explain, this evidence that he drank on May 12, 1998, I have no reason to doubt the accuracy of the Individual’s own signed admission at his polygraph examination. Thus, this evidence strongly indicates the Individual lied under oath on three separate occasions at the hearing in this case when he testified that he has not had a drink in over one year and that he last drank on May 14, 1997. Tr. at 79, 82, 107. As such, it raises another set of issues that bears on every category of concern cited in this case. First, this evidence supports the observation of the DOE psychiatrist that the Individual “is deceitful with repeated lying,” which observation in part led to psychiatrist’s diagnosis of a personality disorder. DOE Exhibit 12 at 12. Second, it thoroughly undermines any assertion that the Individual is currently rehabilitated from alcohol dependency. Finally, it casts serious doubt on the Individual’s honesty, reliability, and trustworthiness, which category of concern I discuss in more detail below.

C. Security Concerns Cited Under 10 C.F.R. § 710.8(l)

Criterion (l) pertains to information that a person has “[e]ngaged in any unusual conduct or is subject to any 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 national security.” 10 C.F.R. § 710.8(l). The derogatory information cited under this criterion by the DOE in its Notification Letter to the Individual includes (1) the recent criminal charges against the Individual, for which he was found guilty on March 13, 1998; (2) the Individual’s prior criminal record; and (3) the instances cited by the DOE psychiatrist indicating that the Individual has been deceitful. DOE Exhibit 4.

First, the Notification Letter states that the Individual was charged with “a violation of [a state law] relating to Lewd or Indecent Acts.” These charges stemmed from the Individual’s alleged behavior with the 14-year-old daughter of a friend. This behavior included showing the girl pictures of him naked, exposing his penis to her, making sexual remarks to her, and touching the girl on the leg or crotch area. See DOE Exhibit 25. As noted above, on March 13, 1998, a jury found the Individual guilty of the crimes of Harassment, Lewd or Indecent Act, and Disseminating Harmful Material to Minors. DOE Exhibit 1.

The Individual has consistently denied that he exposed himself to the girl or touched her on the leg or crotch area. Tr. at 99. He acknowledges that she saw a picture of him naked, but contends that the picture was inadvertently mixed in with a stack of family photographs the girl was looking at, and that he did not intend to show her the picture. Id. at 106. Finally, he acknowledges making certain remarks to the girl that he now realizes were inappropriate, but maintains that he did not make the remarks in an attempt to initiate a sexual relationship. Tr. at 100-01.

To support his version of events, the Individual has submitted the report of a polygraph examination he took on May 14, 1998. Individual’s Exhibit 2. The report states that the Individual

had no physiological reactions indicative of deception and produced overall positive scores indicative of his truthfulness on the following questions:

Question:“Did you ever knowingly provide [the girl] a nude photograph of your body?

Answer:“No” (No Deception Indicated)

Question:“Did you ever attempt to expose your bare penis to [the girl]?

Answer:“No” (No Deception Indicated)

Question:“Did you ever attempt to touch [the girl’s] leg or crotch area?

Answer:“No” (No Deception Indicated)

[The Individual] had minor physiological reactions and produced overall scores in the inconclusive range on the following questions:

Question:“Did you ever make sexual remarks to [the girl] in an attempt to cause her to be sexually interested in you?”

Answer:“No” (Inconclusive)

. . . .

After careful analysis, it is this examiner’s professional opinion that [the Individual] was being truthful on three of the above listed questions. . . .

. . . .

However, due to the [the Individual’s] inconclusive results to the question regarding whether he ever made sexual remarks to [the girl] in an attempt to cause her to be sexually interested in him, [the Individual] cannot be eliminated as suspect regarding this relevant issue.

Id. at 5-6.

While the results of the polygraph examination is evidence somewhat in the Individual’s favor, I note that the DOE psychiatrist stated at the hearing, “If the denial also is firmly entrenched, it will obscure the answers on the polygraph. Though I'm not an expert in polygraphs, I do know that much.” Tr. at 112. In addition, I cannot overlook the fact that the Individual was ultimately found guilty of these charges in a criminal proceeding, i.e. guilty beyond a reasonable doubt. Indeed, the Director of OHA has found in reviewing the opinion of a Hearing Officer that the doctrine of collateral estoppel barred an individual from re-litigating in a Part 710 proceeding the issue of his guilt of a crime after being found guilty in a prior criminal proceeding. Personnel Security Review, Case No. VSA-0118, 26 DOE ¶ 83,012 at 86,580 (1997).

Even if I were to accept the Individual’s version of events, the Individual admitted under questioning by the police investigating the matter that he made the following statement to the girl: “When I look at you, don’t be scared if my dick gets hard.” DOE Exhibit 25. Though admitting he made the remark, he contended he did not make it “in that way. I meant if she’s around me and I get hard I want her to be aware of it so she won’t be frightened. I want her to get used to it.” Id. At the hearing, the Individual did not deny making the remark, but offered the following by way of explanation:

First of all, [the girl]'s mother . . . and [the girl], they talk like that around me. [The girl’s mother] asks me for some money. I quit having sex with [the girl’s mother] quite a while ago because she kept messing up. I tell her, Don't ask me for no more money. If I won't give her no money, then the kids say they're hungry and I end up giving it to her anyway. One day I said, I'm not giving you no more money. And [the girl’s mother] goes, Oh, I'll get your dick hard, I'll bet I'll get all your money.

Q Who said that?

A [The girl’s mother]. So that was one of the reasons I was telling [the girl], Don't be afraid of me, about what her mother be telling her. In the meanwhile, [the girl]'s track record, she was running around, she was living with me now, I helped pay for an abortion. With a track record like that, I figured I could say what I wanted to her to try to get something over to her to quit doing that.

Tr. at 76.

In his written evaluation, the DOE psychiatrist expressed his opinion that the Individual’s behavior “seemed to be carefully constructed grooming of a young female for sexual advances.” DOE Exhibit 12 at 12. Specifically regarding the statement the Individual admitted making to the girl, the DOE psychiatrist testified that, regardless of their context,

those are the words, and those words are not appropriate for that relationship. . . .

. . . .

What he said then, he goes on, "'I meant that if she's around me and I get hard I want her to be aware of it so she will not be frightened.'" Well, the only reason not to be frightened of an erect penis is because you're sexually involved.

Tr. at 54.

The Individual’s attorney argued that

this conversation wasn't any different than what she was listening to on the radio or her boom box. He didn't say anything she hadn't heard before. He's trying to make a point. And perhaps if he were from a different social setting he might have said it differently. But the fact is he did say it like that.

Id. at 62-63.

On this point, the DOE psychiatrist testified as follows:

Q And it's your opinion, even if this [girl] had heard all these terms before and that she knew what these terms meant, that the conversations that [the Individual] had with her would be improper?

A Correct.

Q And it would be improper for any adult in what's called a position of trust?

A Correct.

Q Whether it be a father or a person that's known her all her life?

A Correct.

Tr. at 65-66. The DOE psychiatrist added, “I don't think that the culture in the United States is that varied around the issue of erect penises and how grown adult men and underage children should respond to those.” Tr. at 66.

I simply do not find at all credible the innocent explanation the Individual offered for his remarks to a 14-year-old girl, remarks which even he now admits were inappropriate. Tr. at 101. I find this statement by itself indicates a remarkable lack of judgment and violation of a position of trust by the Individual, even if I were to assume that none of the other behavior of which the Individual was accused took place. In my opinion, this conduct raises legitimate security concerns because it tends to show that the Individual is not reliable or trustworthy. The fact that the Individual has been found guilty by a jury beyond a reasonable doubt of this and other criminal behavior involving the girl adds significant weight to this concern.

The DOE’s Notification Letter also referenced the Individual’s past criminal record, which, as the DOE counsel described at the hearing

shows that he was given non-judicial punishment for public drunkenness in 1965 while in the military, was arrested for public drinking in 1972, drove while his ability was impaired in 1975, received a driving while under the influence citation in 1984, and was cited for disorderly conduct, unlawful display of a weapon, and reckless endangerment in 1986.

Tr. at 9. While not disputing this record, the Individual’s attorney points out that, though the Individual has “had some problems, police problems, there haven't been a lot of recent [problems].” Tr. at 29.

Part 710 requires me to take into account the recency of the Individual’s conduct in reaching my opinion. See 10 C.F.R. § 710.7(c). Nonetheless, I cannot completely ignore these undisputed charges, but must instead evaluate them in the context of the entire record. Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,543 (1996). Even if those actions in and of themselves do not constitute a security concern sufficient to warrant a revocation of access authorization, it is reasonable to consider the Individual’s earlier actions as part of a larger pattern of conduct. See Personnel Security Hearing (Case No. VSO-0096), 26 DOE ¶ 82,756 at 85,544 (1996) (affirmed by OSA) (“A pattern of incidents may well give rise to valid security concerns even though none of the individual incidents would be significant by itself.”). Thus, considered alongside his most recent criminal behavior, these earlier events raise additional concerns regarding the Individual’s reliability.

Finally under Criterion (l), the Notification Letter reiterates the opinion of the DOE psychiatrist that the Individual has been deceitful. DOE Exhibit 4. I have already discussed in Section II.A above my reasons for concurring with the DOE psychiatrist’s opinion on this point. The Individual’s apparent deceitfulness at the psychiatric interview obviously raises concerns about the Individual’s honesty and trustworthiness. The evidence set forth in Section II.B above deepens these concerns by indicating that the Individual testified falsely three times during the hearing regarding his most recent use of alcohol. Because of the Individual’s lack of candor, and because of his criminal behavior past and recent, I agree with the DOE that the Individual has engaged in unusual conduct that tends to show that he is not honest, reliable, or trustworthy.

III. Conclusion

As set forth above, I find that the record in this case raises a number of security concerns. First, I am persuaded by the conclusion of the DOE psychiatrist that the Individual has an illness or mental condition that causes a significant defect in judgment or reliability. By virtue of holding a clearance, individuals can have access to special nuclear material and can become privy to sensitive information that must not be divulged to others. Thus, it is critical that a clearance holder exercise good judgment and be reliable. Second, I agree with the DOE psychiatrist that the Individual suffers from alcohol dependence and that, even if his dependence is in remission at this time, the Individual has not demonstrated that he has been rehabilitated. Use of alcohol habitually to excess and alcohol dependence also raise concerns as to the Individual’s judgment and reliability. Finally, the past behavior of the Individual, as discussed in some detail in Section II.C above, tends to show that he is not honest, reliable, or trustworthy. After reviewing all the evidence in the record, I cannot conclude that restoring the Individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. It is therefore my opinion that the Individual’s access authorization should not be restored. 10 C.F.R. § 710.27(a).

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 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 to which 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

Steven J. Goering

Staff Attorney

Office of Hearings and Appeals

Date: December 17, 1998

(1)*Access authorization is defined as an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Opinion as access authorization or security clearance.