Case No. VSO-0233, 27 DOE ¶ 82,792 (H.O. Mann February 16, 1999)

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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.

February 16, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: September 15, 1998

Case Number: VSO-0233

This Opinion concerns the eligibility of XXXXXXXXX (hereinafter referred to as "the individual") to hold an access authorization (also called a security clearance) under the Department of Energy (DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." As explained below, I recommend against reinstating the individual’s access authorization.

Background

The individual is employed by the DOE and had an access authorization for more than a decade before it was terminated. The local DOE security office issued a Notification Letter to the individual on August 27, 1998. The Notification Letter contains three separate charges, each of which is explained below.

Charges Under Criterion F

First, the Notification Letter alleges under 10 C.F.R. § 710.8(f) that the individual “deliberately misrepresented, falsified or omitted significant information from a Questionnaire for Sensitive Positions (sic) and written or oral statements made in response to an official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.” According to the Notification Letter, when the individual completed a Questionnaire for National Security Positions (QNSP) on September 30, 1996, he failed to report the following instances when he had received mental health counseling and treatment: (1) the individual saw one psychiatrist from January through June 1995, who gave him counseling for depression and dealing with stress, and prescribed Prozac; (2) the individual was voluntarily hospitalized for five days beginning on October 28, 1995, where a second psychiatrist (hereinafter "individual's psychiatrist") diagnosed the individual with Major Depression, in partial remission, and Intermittent Explosive Disorder, and changed his medication to

Zoloft; and (3) the individual saw a psychologist when he was released from the hospital in November 1995 for aftercare therapy, "to overcome depression, elevate self-esteem and control [his] temper."

The Notification Letter further states that on his Report of Medical History (Form ALF 3790.12) dated July 10, 1996 which is required for clearance under the Personnel Assurance Program (PAP), the individual certified that he was "not on medication," and checked "no" to the questions "Have you ever had or have you now depression or excessive worry?" and "Have you ever been treated for a mental condition?" However, during a personnel security interview (PSI) on May 14-15, 1997, the individual reported that he had been on Zoloft since October 1995. During the May 1997 PSI, the individual stated that he did not disclose his 1995 psychiatric treatment and hospitalization because he entered the hospital for "relationship counseling." The Notification Letter points out medical records dated October 28, 1995 (when he was admitted to the hospital) that indicate the individual reported that he had been experiencing worsening explosive episodes for the past six months; he had been on Prozac; he had been depressed; and he was afraid that he was going to hurt his ex-girlfriend. At the time of this admission, the individual was diagnosed with "Major Depression, severe, in partial remission; Intermittent Explosive Disorder - Danger to Others."

Charges Under Criterion H

The Notification Letter alleges under 10 C.F.R. § 710.8(h) that the individual “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.” This charge is based on an evaluation of the individual by a DOE consultant psychiatrist, who reported that the individual met the criteria in the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for major depression and paranoid personality disorder, and opined that these conditions cause, or may cause, a significant defect in the individual's judgment and reliability.

Charges Under Criterion L

The Notification Letter finally alleges under 10 C.F.R. § 710.8(l) 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, exploitation or duress which may cause him to act contrary to the best interests of the national security.” The bases for this charge are several reports of domestic violence allegedly committed by the individual against his ex-girlfriend, including the following: (1) an incident report by the local police department dated July 15, 1989 when a witness reported seeing the individual strike his girlfriend several times, then grab her hair and sling her head against the window when they were driving; (2) a second police incident report for Assault-Simple dated January 27, 1995 which states that the individual "threw a stereo at her [his ex-girlfriend] hitting her in her left leg cutting her leg. He pushed her against the wall and she has a bruised area on her forehead. . . .He pushed her while she was in the vehicle and hit her chin on the post of the vehicle. She also had a bruise on the left side of her chin;" and (3) a third police incident report for Vandalism dated October 28, 1995 which states that the individual kicked in the front door of his ex-girlfriend's residence and destroyed the phone by pulling it from the wall.

Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the charges in the Notification Letter. DOE transmitted the individual's hearing request to the Office of Hearings and Appeals (OHA), the OHA Director appointed me as Hearing Officer in this case, and I convened a hearing that took two full days.

At the hearing, the DOE Counsel called eight witnesses, including the individual, the DOE psychiatrist, the individual's psychiatrist, two of the individual's co-workers from the same DOE program, the individual's ex-girlfriend, a friend of the individual's ex-girlfriend, and the DOE personnel security specialist who conducted the May 1997 PSI. The individual testified on his own behalf, and his attorney called four other witnesses, including the individual's psychiatrist, two different co-workers from the same DOE program, and the individual's current girlfriend. The DOE submitted 26 written exhibits, and the individual submitted eight written exhibits.

During the hearing, the individual’s attorney requested an opportunity to review the individual’s DOE security file and the background investigation conducted by the Office of Personnel Management (OPM), and to submit documents favorable to the individual if any were culled from either source. The individual's attorney also requested that I direct the local DOE security office to produce a summary report showing the record of questions referred to the DOE psychiatrist in the 1998 calendar year to date, and his findings on each of the questions referred. I granted both requests. In addition to the report on the DOE psychiatrist's 1998 referrals, the DOE Counsel submitted records obtained from a family counselor who treated the individual and his ex-girlfriend in early 1995 following a referral by the individual's first psychiatrist. Since these counseling records had been requested by the DOE (with the individual's consent) before the hearing, but were not received until afterwards, I made them part of the record. The individual’s attorney did not submit any information from the DOE personnel security file or the OPM background investigation. I then closed the record.

Standard of Review

The applicable DOE regulations state that "[t]he 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 resolving questions about the individual’s eligibility for access authorization, I must consider the relevant factors and circumstances connected with the individual’s conduct. These factors are set out in § 710.7(c):

the nature, extent, and seriousness of the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the voluntariness of participation; the age and maturity of the individual at the time of the conduct; 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; [and] the likelihood of continuation or recurrence.

A DOE administrative review proceeding under 10 C.F.R. Part 710 is authorized when the existence of derogatory information leaves unresolved questions about an individual’s eligibility for access authorization. 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). The burden is on the individual to come forward 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. § 710.7(a). See Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. The individual has not met this burden. For the reasons discussed below, I recommend that his access authorization not be reinstated.

Findings of Fact and Analysis

Although the three different charges in the Notification Letter are intertwined, they need to be considered separately. I will treat the allegations under Criterion F first, because they are the most serious. Then I will turn to Criterion H, and finally, I will consider the allegations under Criterion L.

Charges under Criterion F

As noted above, the Notification Letter charges that when the individual completed a Questionnaire for National Security Positions (QNSP) on September 30, 1996, he failed to report his psychiatric treatment and hospitalization in 1995 and also failed to report that he was taking psychotropic medications that had been prescribed by the two different psychiatrists who treated him in the year before his submission of this QNSP. It also charges that he failed to indicate, on his July 1996 Report of Medical History for the PAP, that he was on medication, that he had major depression, and that he had been treated for a mental condition. The individual later admitted this information during the May 1997 PSI, but he claimed that he did not disclose his 1995 psychiatric treatment and hospitalization because he had entered the hospital for relationship counseling. At the hearing, a co- worker of the individual testified that the individual told him he had orally reported this information to his then-supervisor. Hearing Transcript (hereinafter cited as "Tr.") at 359. The former supervisor testified that he could not remember hearing this information from the individual, but admitted it was possible that he had simply forgotten what the individual had told him. Tr. at 240-242. As the DOE psychiatrist noted, it is clear that nobody passed this information on to DOE Security or the PAP at the time. DOE Psychiatrist's Report at 60.

The individual's desire to resurrect the relationship with his ex-girlfriend was clearly one factor that led him to seek psychiatric treatment in October 1995. While there is an element of truth to the individual's assertion that he sought "relationship counseling," his psychiatrist recalls telling him "You know, I can't get your girlfriend back, but you appear depressed and sort of out of control and maybe we can help you with that." Tr. at 189. His psychiatrists treated the individual for major depression and intermittent explosive disorder, gave him several prescription medications, and referred him at various times during 1995 to a family counselor and a psychologist for therapy. Thus, the individual certainly knew that his psychiatric treatment involved much more than relationship counseling, yet he clung stubbornly to that excuse for not reporting it to DOE Security and the PAP. See Tr. of May 14, 1997 PSI at 1-41. As one who held clearances under both the DOE Security program and the PAP, the individual also knew that he was required to inform DOE about the psychiatric treatment, hospitalization and medication he received in 1995. His denials on the July 1996 PAP medical report, and his failure to mention this information on the QNSP in September 1996 constitute falsification or omission of significant information. As the DOE psychiatrist stated at the hearing, this medical information should have been considered by the PAP physician, who was responsible for deciding whether the individual could be medically cleared to perform his duties. See 10 C.F.R. § 711.6 (PAP certification process). The medical information also had a direct bearing on the individual's eligibility for access authorization because a mental illness can be a disqualifying factor under Criterion H, as discussed below.

OHA Hearing Officers have stated that “[a] good test of the individual’s honesty, reliability and trustworthiness is the individual’s willingness to discuss events in a candid way with DOE personnel security specialists.” Personnel Security Hearing (Case No. VSO-0148), 26 DOE ¶ 82,796 (1997), quoting Personnel Security Hearing (Case No. VSO-0037), 25 DOE ¶ 82,778 (1995), affirmed (OSA 1996). As discussed above, I find that the individual was being deceptive when he characterized his medical treatment for major depression as "relationship counseling." The individual knew that his treatment went far beyond relationship counseling, and he knew that he was required to report it. The security program is based on trust, and once an individual has breached that trust, there is a question as to whether that individual can be trusted to comply with the security regulations. Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995). I find that the individual's concealment of information about his treatment for a mental illness and use of psychotropic medications from DOE Security and the PAP shows that he is not honest, reliable and trustworthy, and constitutes sufficient reason to recommend against reinstating his access authorization under Criterion F.

Charges under Criterion H

In his report, the DOE psychiatrist noted that the individual had been diagnosed with major depression. DOE Psychiatrist's Report at 65-66. In addition, the DOE psychiatrist found that the individual "may have intermittent explosive disorder," id. at 67, but he felt that the individual's aggressive behavior toward his ex-girlfriend, and what the DOE psychiatrist perceived as the individual's "inappropriate" anger at "DOE Security," was better explained by a diagnosis of paranoid personality disorder. Id. at 69-71. The DOE psychiatrist thought it showed a significant defect in the individual's judgment and reliability that he hid from the PAP and DOE Security the fact that he was under psychiatric care for depression, having panic attacks, and taking psychotropic medications while performing his job duties. Tr. at 77-78. In his report, the DOE psychiatrist attributed the individual's concealment of his medical history from DOE to his mental condition, which, according to the DOE psychiatrist, cause the individual to distrust DOE Security. DOE Psychiatrist's Report at 60. After listening to the individual's psychiatrist testify at the hearing, the DOE psychiatrist stated that he did not have an opinion on whether the individual could function on the job with the medications he is taking, because it is the PAP physician's role to make that determination. Tr. at 232. The DOE psychiatrist conceded that, based on two reports commissioned by DOE (Individual Exhibit 4), which describe a hostile work environment in the individual's program, and a lack of trust and mutual respect between DOE management and the employees in that program, "the issue of paranoid personality disorder is gray...." Id. at 233. According to the DOE psychiatrist, if the individual's aggressive and angry behavior was not attributable to paranoid personality disorder, he would agree with the 1995 diagnosis by the individual's psychiatrist that the individual had intermittent explosive disorder. Id. at 234.

At the hearing, the individual's psychiatrist agreed with the DOE psychiatrist that the individual had major depression. Tr. at 218-220. He also agreed with the DOE psychiatrist's statistics that there was generally a 50 percent chance that a person who had one major depressive episode would have a recurrence. Id. However, the individual's psychiatrist also thought that the individual's major depressive episode was caused by the breakup of the eight-year relationship with his ex-girlfriend. He said that it was his clinical impression that such "environmentally caused depression" was "not likely to recur unless you have a severe stressor again, like that." Id. at 219. He also found it favorable that the individual had no prior history of depression, was "moving past the loss of that relationship [and] he's had a resolution of symptoms." With respect to the effect of the medication (Zoloft), the individual's psychiatrist stated that "there is no real significant risk from continuing the medication. It doesn't impair one on the job or make someone at risk. And unlike in the past where the medications had a lot of side effects, you're not all that quick to want to just take it away." Based on all these factors, the individual's psychiatrist concluded that "in the case of [the individual], I don't know, but I don't think you can just say a 50-percent chance [of a recurrence], I think you're probably looking at a lesser chance unless he stays in the same kind of pejorative sort of environment." Id. at 219-220.

According to medical records made at the time of the individual's hospitalization in October 1995, the individual's psychiatrist and other physicians also diagnosed him with intermittent explosive disorder. DOE Exhibit 4. At the hearing, however, the individual's psychiatrist testified that he made an incorrect diagnosis initially, and he is now of the opinion that the individual does not have intermittent explosive disorder. Tr. at 234-237. The individual's psychiatrist repudiated this part of his original diagnosis because he questioned whether there was any hard evidence to corroborate information in the 1995 hospital notes about violent and destructive acts by the individual shortly before he entered the hospital. Id. at 177-182, 237. He stated that the information in medical notes is not always accurate, and remarked that he often signs hospital charts without reading them. Id. at 183.

A substantial amount of time at the hearing focused on the factual underpinnings for the DOE psychiatrist's diagnosis of paranoid personality disorder. The individual's psychiatrist, who had worked with him over an expended period of time, strongly disagreed with the diagnosis of paranoid personality disorder. He focused on the main diagnostic criterion for the disorder in the DSM-IV: "a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent...." According to the individual's psychiatrist, these traits would be immediately evident in an initial interview with a patient, and "they can never be concealed in appointment after appointment after appointment...." Tr. at 193. By contrast, the individual's psychiatrist found that he did not display "a pervasive distrust and suspiciousness of others," but instead was an "affable, amiable, easy to work with guy, gregarious." Id. at 197. The individual's psychiatrist thought that the angry attitude observed by the DOE psychiatrist resulted from other factors. These include the hostile work environment in the individual's program as noted in the reports, which explained why he appeared distrustful in the interview with the DOE psychiatrist. Id. at 205. Several other witnesses from the individual's program testified that his attitude of distrust toward the DOE psychiatrist was understandable because they would feel the same way in that situation, and stated that they did not know him to exhibit "a pervasive distrust and suspiciousness of others" or any similar behaviors. Tr. at 341-396. In addition, there is evidence the individual was angry at the time of the interview with the DOE psychiatrist because DOE Security made him drive to another city hundreds of miles away from his duty station for the interview, and to take a Minnesota Multiphasic Personality Inventory, 2d version (MMPI-2). The individual complained to his own psychiatrist that the interview and MMPI-2 could have been done in his home town. Id. at 298. Finally, the individual takes narcotic pain medication for an injury. He could not take his pain medication at the time of the interview with the DOE psychiatrist, because he had to drive himself there and wanted to be clear- headed. The individual told the DOE psychiatrist "If I seem a little hostile, it's because of that." DOE Psychiatrist's Report at 57, 61-62.

After reviewing the record in this case, I find that the DOE psychiatrist may have misconstrued some of the evidence on which he relied initially in his diagnosis of paranoid personality disorder. As noted above, the DOE psychiatrist himself conceded that this diagnosis was "gray" after hearing evidence about the hostile work environment in the individual's program.

Nevertheless, it is my common-sense judgment that even if the individual does not have paranoid personality disorder, he has failed to resolve all of the security concerns raised by his mental condition. Both psychiatrists who testified at the hearing agree that the individual does have major depression. The psychiatric evidence is less convincing as to whether the individual suffers from another mental condition described in the DSM-IV, either intermittent explosive disorder or paranoid personality disorder. What is important for the purposes of this proceeding is whether the individual's condition "causes or may cause a significant defect in judgment and reliability." Here again, the two psychiatrists differ in their opinions. The DOE psychiatrist believes the individual's mental condition causes or may cause a significant defect in his judgment and reliability because it made him distrust DOE enough to withhold important health information. The individual's own psychiatrist is confident that his condition is in remission, that his medication is effective, and that there is no defect in the individual's judgment and reliability. Weighing this conflicting expert opinion, I find that the individual's mental condition could cause a significant defect in his judgment and reliability if he experienced a serious stressor that precipitated another major depressive episode. While the individual's psychiatrist thinks this possibility is probably less than 50 percent, it is clearly greater for this individual than for a person who has never had a major depressive episode. If the likelihood of another major depressive episode were the only security concern in this case, I might be more inclined to recommend reinstating the individual's clearance since his treatment seems to have achieved a good result. But there are other, related security concerns, which are discussed above under Criterion F. There is clear evidence that the individual concealed the fact that he was under treatment for a mental illness and taking psychotropic medications while on duty from DOE Security and the PAP. Even though the individual may have overcome some of the concerns about his mental illness under Criterion H, I am left with the strong impression that his illness was serious, and should never have been hidden. In view of this conduct, I am not convinced that the individual's mental condition has not caused a significant defect in his judgment and reliability.

Charges under Criterion L

The Notification Letter charges that the individual engaged in a pattern of domestic abuse during the eight-year relationship with his former girlfriend. The record indicates that DOE had sufficient concerns about information in the individual's background investigation to warrant giving him a "Supplemental Security Lecture" about violent behavior in 1990. Domestic violence is also mentioned in the individual's medical history from 1995. The DOE psychiatrist, who had access to the background investigation, found that the individual's denial of violent behavior was not convincing. DOE Psychiatrist's Report at 53-54, 59, 66. There is graphic evidence that the individual was abusive at least once during the eight-year live-in relationship with his ex-girlfriend, in police photographs taken after an incident in January 1995 which show bruises on her face and other parts of her body. DOE Exhibit 25. The individual's ex-girlfriend also testified about the injuries depicted in those police photos, and her account of events surrounding that incident was corroborated by another witness. Tr. at 261-267 (ex-girlfriend); 247-257 (corroborating witness). The individual admitted that he had bruised his ex-girlfriend, but minimized the seriousness of the incident depicted in the photos and generally denied being abusive to her. Tr. at 434-448. There was no independent evidence presented at the hearing to corroborate the events described in the other two police incident reports. The individual has never been arrested or charged with a crime involving domestic violence.

There is reason to question the credibility of both the individual and his ex-girlfriend, who apparently are still feuding with each other. The individual filed a criminal complaint against his ex-girlfriend for alleged misuse of his ATM card to take funds from his account, for which she is currently under indictment. The individual introduced a police incident report that described the investigation that led to his ex-girlfriend's arrest on the ATM charge. Individual Exhibit 3. The ex-girlfriend testified that she lied to an Office of Personnel Management investigator when she denied that the individual had been abusive to her, and admits that after she was arrested on the ATM charge, she called DOE Security and "blew the whistle" on him. Tr. at 281-284.

Nevertheless, after seeing the photographic evidence, and observing the demeanor of the witnesses at the hearing, I believe that the individual had been physically abusive to his ex-girlfriend. The individual's denial of this behavior is simply not credible. This violent behavior shows that the individual had trouble maintaining his self-control before he recognized the existence of a problem and obtained psychiatric treatment, medication, therapy and relationship counseling in 1995. In the absence of mitigating evidence, it would be another reason why the individual should not have his access authorization reinstated. 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 years ago). In this case, there is no evidence of any violent behavior by the individual after October 1995. The individual is currently engaged to a woman who, by virtue of her training and experience, would recognize the characteristics of domestic violence. She testified that the individual has never acted in a violent manner with her. Tr. at 401. The individual should be commended for seeking medical treatment and counseling in 1995, although he should not have hidden those important facts from the DOE.

In the final analysis, I find the individual has not met his burden of coming forward with evidence to resolve the security concerns about domestic violence. There is positive evidence that the individual has not engaged in any domestic violence since 1995 when the relationship ended with his ex- girlfriend. But his tendency to deny or downplay the seriousness of violent behavior shows that the individual is still not taking full responsibility for his past actions. Moreover, there is no professional opinion which deals directly with whether the individual's behavior, in the context of his domestic relationships with the women in his life, can be considered rehabilitated or reformed. As a result, this question remains unanswered, and I cannot find in the individual's favor on the domestic violence charge brought under Criterion L.

Conclusion

For the reasons explained in this Opinion, I find that the individual has failed to show that reinstating his access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I recommend that the individual's access authorization not be reinstated.

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

Thomas O. Mann

Hearing Officer

Office of Hearings and Appeals

Date: February 16, 1999