Case No. VSO-0251, 27 DOE ¶ 82,813 (H.O. Fine August 11, 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.

August 11, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 15, 1998

Case Number: VSO-0251

This Opinion concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to as "the Individual") to retain a level “Q” access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The Department of Energy's Idaho Operations Office (the Operations Office) suspended the Individual's access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the Individual's access authorization should be restored. For the reasons stated below, it is my opinion that the Individual's access authorization should not be restored at the present time.

I. BACKGROUND

The events leading to the present proceeding began when the Individual underwent a routine re- investigation of his eligibility to maintain a DOE access authorization. Because this re-investigation revealed information which raised security concerns, a Personnel Security Interview (PSI) of the Individual was conducted on February 17, 1998. This PSI failed to resolve the security concerns raised during this re-investigation. Accordingly, the Individual was evaluated by a board certified psychiatrist at the Operations Office's request. This evaluation consisted of an interview of the Individual, a review of his security file and the administration of two standardized personality profile tests, the Minnesota Multiphasic Personality Inventory II (the MMPI-II) and the Millon Clinical Multiaxial Inventory - III (MCMI-III).

Because the evaluation and investigation revealed a significant amount of unresolved derogatory information concerning the Individual, his access authorization was suspended and an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The Operations Office then issued a letter notifying the Individual that it possessed information that created a substantial doubt concerning his continued eligibility for access authorization (the Notification Letter). The Notification Letter specifies three areas of derogatory information described in 10 C.F.R. § 710.8. First, the Notification Letter alleges that the Individual has "deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, 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). Second, the Notification Letter charges 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.” 10 C.F.R. § 710.8(l). Third, the Notification Letter alleges that the Individual has "an illness or mental condition of a nature which . . . causes, or may cause, a significant defect in judgment or reliability." 10 C.F.R. § 710.8(h). The Individual filed a request for a hearing in which he made a general denial of the allegations contained in the Notification Letter. This request was forwarded to the Office of Hearings and Appeals (OHA) and I was appointed as Hearing Officer.

At the hearing, the Operations Office presented three witnesses: the consultant psychiatrist, a Personnel Security Specialist and the Individual. Pursuant to my ruling at the conclusion of the hearing, the record of this proceeding was closed on July 25, 1999, 30 days after the hearing. See Transcript of Hearing, Case No. VSO-0251 (hereinafter cited as “Tr.”) at 190.

II. STANDARD OF REVIEW

The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the Individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The 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). I have considered the following factors in rendering this Opinion: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the Individual's age and maturity at the time of the conduct; the voluntariness of the Individual's 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 continuation or recurrence; and other relevant and material factors. See 10 C.F.R. § 710.7(c); § 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.

III. FINDINGS OF LAW AND FACT

A. Criterion F

Criterion F applies to information that the Individual has: “Deliberately misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive Positions, a personnel qualifications statement, a personnel security interview, 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).

In the present case, the Notification Letter charges that the Individual submitted a Personnel Security Questionnaire (PSQ) dated December 2, 1985. Question 11 of this PSQ asked: "Are you now, or have you ever been a user of any narcotic, hallucinogen, stimulant, depressant or cannabis . . . except as prescribed by a licensed physician?" The Individual answered this question "No." However, the Psychiatrist's Report indicates that the Individual told him that he had used illicit drugs on at least four occasions during high school. Psychiatrist's Report at 3. It has been almost 15 years since the Individual submitted this inaccurate answer. I am inclined to find that passage of this amount of time mitigates the security concerns raised by the Individual's submission of an inaccurate answer on a PSQ. (1)

The Notification Letter also charges that the Individual provided false information on a Questionnaire for Non-Sensitive Positions (QNSP) dated May 29, 1997. Question 27a of the QNSP asked: "In the last 7 years, have you filed a petition under any chapter of the bankruptcy code (to include chapter 13)?" Apparently, the Individual indicated, on the QNSP, that he had filed for bankruptcy under Chapter 13 in October 1996. The Operations Office contends that the bankruptcy court's records indicate that the Individual filed for bankruptcy twice during the applicable time period. According to the Operations Office, the Individual's failure to report the second bankruptcy constitutes a deliberate omission.

However, the Individual has provided an explanation of why he only reported one bankruptcy, when the bankruptcy court's records indicate that he filed twice during the reporting period. The Individual explained that he had failed to comply with the payment plan mandated by the bankruptcy court. As a result, the bankruptcy court dismissed his bankruptcy claim and he had to refile it. The Individual explained that he saw this sequence of events as one claim and did not consider it to be two separate claims. The Operations Office has not shown that the Individual was required to report the dismissal and refiling of the bankruptcy claim on the QNSP as two bankruptcies. Nor does common sense suggest that he was required to report these events as two bankruptcies. Since the Operations Office did not submit evidence showing that the Individual was expected to report the dismissal of his first bankruptcy and the refiling of his second bankruptcy, it has not shown that the Individual deliberately attempted to deceive DOE security when he failed to explain that he had to refile his bankruptcy petition or that the Individual should have known that he was expected to explain that his bankruptcy was refiled.

Accordingly, I find that the first charge under Criterion F is mitigated by the passage of time. I find that the second charge under Criterion F is without merit, since there is no evidence that the Individual had either deliberately deceived DOE security officials or had failed to comply with reporting requirements.

B. Criterion L

Criterion L refers to information that an individual 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 the national security.” 10 C.F.R. § 710.8(l).

The present case involves an individual who has exhibited a long standing and well-documented pattern of gross irresponsibility. Moreover, the Individual's actions clearly indicate that his judgment and reliability are significantly impaired.

For example, the Individual admitted to an extraordinary history of financial mismanagement. This pattern of financial irresponsibility goes back to at least 1980, when the Individual declared bankruptcy for the first time. Apparently, the Individual failed to learn from this experience, since by late 1996, the Individual was once again living beyond his means and continuing to purchase luxury items which he knew he could not afford. February 17, 1998 PSI at 6. The Individual then raised the number of claimed dependents to 40 so that state and federal taxes would not be withheld from his paycheck. Id. at 12. He apparently did this without having a plan for addressing the resulting tax bill of over $9,300. Id. at 11-13. Moreover, the Individual indicates that he discontinued making mortgage payments on his house for a period of about a year. Id. at 10. On several occasions during this time-period, the Individual wrote checks in return for goods and services even though he knew that his checking account did not contain the necessary funds. Id. at 48-49. Eventually, the Individual was forced to file for a second bankruptcy in October 1996. Id. at 6. After making three of the payments mandated under the plan approved by the bankruptcy court, the Individual quit making payments on the plan. The bankruptcy court dismissed his petition. He eventually refiled his claim.

This pattern of financial irresponsibility does not appear to be resolved. Moreover, it is clear to me that the Individual does not appreciate the significance of his failure to conduct his financial affairs in a responsible and appropriate manner. (2) At the Hearing, the Individual admitted that he does not presently have a financial counselor or even a budget. Tr. at 109, 150-51. He further testified that he does not currently have any specific plan for getting his financial affairs in order. Id. at 150- 51. I therefore can not find that the Individual has resolved the Criterion L security questions raised in the Notification Letter.

C. Criterion H

The Individual’s history of depression raised serious security concerns under the criteria set forth at 10 C.F.R. § 710.8(h). Criterion H provides that a serious security concern is raised when an individual has:

An 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). In order to resolve the security concerns raised by the Individual’s history of depression, the DOE arranged for him to be examined by a board certified psychiatrist. On March 20, 1998, the DOE Psychiatrist conducted a psychiatric examination of the Individual and administered two standardized psychological tests. The DOE psychiatrist concluded that the Individual had either a Major Depressive Disorder (with recurrent mixed specifiers, melancholia and atypical features) or Bipolar II disorder (with recurrent major depressive episodes with hypomanic episodes in past; most recent episode depressed) and/or Dysthymic Disorder, chronic, mild, early onset type. In addition, the DOE Psychiatrist diagnosed the Individual with a Mixed Personality Disorder or Personality Disorder Not Otherwise Specified (with Dependant Personality features, Avoidant Personality Traits likely and Antisocial Personality traits when depressed). DOE Psychiatrist's Report at 9-10. The DOE Psychiatrist then expressed a high level of concern about the Individual's judgment and reliability. Specifically, his report states:

With all the unresolved emotions and feelings expressed on these pages, one has to be concerned that the subject may be a "time-bomb" and on the edge of reacting or exploding if sufficiently provoked. Also one has to consider that the subject has actually nothing to lose, should the anger and hurt the subject feels escalate into a reaction.

DOE Psychiatrist's Report at 7. The DOE Psychiatrist then stated:

The subject has not had adequate treatment or rehabilitation for the mental disorder . . . . The bottom line is that the subject's depression and associated aberrant behaviors do meet the criteria for paragraph (h) of 10 C.F.R. 710, that is the subject has a mental condition, illness or disorder of a nature which, in my opinion, may or could cause a significant defect in judgment or reliability that could be manifest in behavior of a safety or security concern.

***

My opinion is that the depression will once again resurface and manifest in aberrant behaviors similar to those seen in the past. The subject needs to be seen by a psychiatrist for management of psychotropic medication and also needs psychotherapy of a psychodynamic type.

***

The Prognosis is guarded. It is statistically likely that without proper psychotherapy and psychotropic medication management, another serious depressive episode will occur.

Id. at 9-10 (emphasis in the original). The Individual failed to submit any evidence contradicting these findings of the DOE Psychiatrist. (3) Accordingly, I find that the Individual has not resolved the Criterion H security concerns raised in the Notification Letter.

It is important to note that I am not concluding that the Individual is not eligible to maintain a DOE access authorization simply because he was properly diagnosed with a mental illness. Had the Individual exhibited an appropriate level of insight into his circumstances and demonstrated the appropriate commitment to obtaining medical treatment for his illness, I might have been able to conclude that the security concerns raised by his illness had been resolved. Instead, the Individual has not acknowledged that he has a mental illness that requires medical treatment. This failure to recognize or acknowledge his condition raises grave doubts on my part about his ability to maintain a DOE access authorization.

IV. CONCLUSION

For the reasons set forth above, I conclude that the Individual has not shown that he warrants restoration of his access authorization. The Operations Office therefore has a sufficient basis for invoking Criteria L and H in the present circumstances. Since the Individual has not resolved the Operations Office’s allegations under Criteria L and H, I conclude that the Individual has not demonstrated that restoring his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the Individual's access authorization should not be restored at this time.

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 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.

Steven L. Fine

Hearing Officer

Office of Hearings and Appeals

Date: August 11, 1999

(1)The record does not contain any evidence suggesting that the Individual's illegal drug use is more extensive than his admitted use during his high school years.

(2)The Individual's financial circumstances also render him susceptible to coercion or blackmail.

(3)Although a period of over seven months elapsed between the issuance of the Notification Letter and the Individual's hearing, he provided no reliable evidence contradicting the DOE Psychiatrist's findings. This fact concerned me, since the Individual requested, and was provided, two extensions of the hearing date for the express purpose of obtaining an expert opinion. I also, at the Individual's request, held the record open for an additional 30 days in order to provide him with an opportunity to submit evidence contradicting the DOE Psychiatrist's findings.