Case No. VSO-0302, 27 DOE ¶ 82,832 (H.O. Gray February 1, 2000)

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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 1, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:September 14, 1999

Case Number: VSO-0302

This Opinion addresses the eligibility of XXXXX (the Individual) for access authorization. The regulations governing the Individual’s eligibility are found at 10 C.F.R., Part 710. Pursuant to these regulations, the Individual requested a hearing to resolve concerns about his eligibility for access authorization. 10 C.F.R. § 710.21(3)(ii).

As explained below, I do not believe the Individual has resolved the concerns. It is therefore my opinion that he should not be granted access authorization.

A. Background

The Individual works for a contractor at site of the Department of Energy (DOE). During a recent review of the Individual’s background, a number of items were discovered that cast doubt on his eligibility for access authorization.

The manager of the DOE site sent the Individual a Notification Letter, which listed derogatory information that raised security concerns about the Individual. The manager found that the derogatory information indicated that the Individual may not be honest, reliable, or trustworthy. 10 C.F.R. § 710.8(l). The Individual requested a hearing to afford himself the opportunity to support his eligibility for access authorization. 10 C.F.R. § 710.21((b)6).

B. Analysis

The Individual has not made any serious response to the security concerns raised in the Notification Letter. Therefore, I will not discuss all of the derogatory information contained in the Notification Letter, nor will I discuss the charges in detail. Instead, I will discuss the salient facts of the most serious items. These items can be considered under two broad categories - criminal behavior and financial irresponsibility.

1. Criminal Behavior

This category of derogatory information consists of a series of crimes that the Individual has committed. His criminal record goes back more than thirty years, and includes charges of disorderly conduct, assault and battery, and alcohol-related charges. Because many of the criminal charges occurred years ago, the precise circumstances and disposition of many of the charges are unknown. The undisputed information in the record, however, is sufficient to cast serious doubt on the Individual’s reliability and trustworthiness.

For example, in 1982, the Individual was convicted of simple battery and sentenced to twelve months probation. In 1983, he drew a pistol and fired at a man in a bar because, he claimed, the barmaid complained that the man was bothering her. One man was struck in the foot with a bullet. The Individual was arrested and charged with assault with intent to murder, but the charges were dropped for lack of prosecution.(1) In 1986, he physically abused his wife to the point that she sought treatment at the emergency room of a local hospital. While he initially claimed that he struck her only with a wet towel, he admitted at the hearing that “I may have hit her with my hand or fist ... she may have had a bruise on her face, I don’t remember.(2) In 1991, he was arrested twice on contempt of court charges stemming from his failure to pay child support.(3)

In 1998, the Individual was involved in an altercation with another man at a bar. The man struck the Individual from behind, knocking him to the floor. The Individual left the bar and waited outside for the other man. Thirty minutes later, the other man left the bar. The Individual fired three shots at him from a hand gun, striking him once in the leg, but the man survived.

The Individual was arrested and charged with aggravated assault. He pled guilty, and was sentenced to ten years probation, fined approximately $6,000, ordered to pay restitution to the victim, ordered to perform 250 hours of community service, and ordered to attend drug and alcohol treatment and counseling.(4)

At the hearing, the Individual did not deny his involvement in these crimes. While he admitted to lying in wait for his gunshot victim, he claimed that he shot him in self defense.(5) He offered no corroboration for his claim of self defense. Moreover, the Individual’s own account of the incident, in which he admitted to waiting for thirty minutes for the unarmed man to leave the bar, makes it clear that a claim of self defense is preposterous. The Individual also said he pled guilty to this crime only because his attorney told him to do so. This claim, even if corroborated, would be insufficient to resolve the security concern raised by the Individual’s admitted conduct in shooting the man outside the bar.

The Individual’s history thus raises concerns that he resorts to violence to solve problems, and ignores laws when it is convenient for him. These concerns have not been resolved by any evidence or testimony that the Individual presented at the hearing. I therefore find that the Individual’s criminal record raises unresolved concerns about his honesty, reliability, and trustworthiness.

2. Financial Irresponsibility

The second category of derogatory information involves the Individual’s financial irresponsibility. Items in this category include the Individual’s failure to pay his state income tax for the years 1987- 1990 and 1997; failure to pay several medical bills between 1990 and 1998; inability to keep current on his truck payments; and repeated delinquencies in paying child support. In no case was the indebtedness for more than a few hundred dollars.

At the hearing, the Individual testified that he has recently satisfied all his financial obligations.(6) The Individual’s assertion, even if corroborated, does not sufficiently address the security concern. The Individual was asked at the hearing to explain why he repeatedly failed to pay his bills. He replied that the reason was “negligence ... just didn’t pay them.(7) The fact that the delinquencies were for relatively small dollar amounts supports the conclusion that the cause of the Individual’s bad debts is not financial hardship but his irresponsible attitude toward paying his bills on time.

Once there is a pattern of financial irresponsibility, the individual must demonstrate a sustained, new pattern of financial responsibility for a period of time that is sufficient to demonstrate that a recurrence of the past pattern is unlikely. Personnel Security Hearing (Case No. VSO-0108), 26 DOE ¶ 82,764 at 85,699 (1996). In merely paying his debts shortly before the hearing, the Individual has not established the requisite pattern of responsibility. Consequently, I find that the Individual’s pattern of financial irresponsibility raises unresolved concerns about his honesty, reliability, and trustworthiness.

C. Conclusion

Both the Individual’s criminal record and his financial irresponsibility indicate his inability to follow fundamental rules and meet basic obligations. I find that this calls into question his ability to follow security rules and procedures.

We have determined in previous cases that “the demonstrated willingness of an individual . . . to decide unilaterally which rules are worth following and which are not can present a risk to the common defense and security, despite that individual's best intentions.” Personnel Security Hearing, Case No. VSO-0075, 25 DOE ¶ 82,799 (1996), aff’d in Personnel Security Review, Case No. VSA-0075, 26 DOE ¶ 83,005 (1996). In addition, a finding that a person has difficulty with following rules leads to the conclusion that his judgment, reliability, and trustworthiness are not adequate to the requirements of holding access authorization. Personnel Security Hearing, 27 DOE ¶82,768 (1998); Personnel Security Hearing, Case No. VSO-0073, 25 DOE ¶ 82,794 (1996).

The Individual attempted to resolve the security concerns by stating at the hearing that he had worked at the DOE facility for a long time, and "I've never been approached by anybody, never thought about any treason or sabotage or anything of this nature, nor would I ever."(8) Such a committment is generally not sufficient to resolve security concerns. Furthermore, I do not find his commitment to be credible, for two reasons set forth below.

First, the Individual’s statements that he would not compromise classified information are not credible, given his demonstrated lack of the judgment and responsibility that are required to carry out his intentions. The Individual’s criminal behavior and financial irresponsibility, discussed above, indicate a persistent failure to follow rules and fulfill obligations.

Second, the Individual has a history of making commitments that he cannot keep. During a series of Personnel Security Interviews, the Individual has made promises that he has broken, including promises to bring delinquent accounts up to date, to stop drinking and carrying a gun, and to abide by the law.(9) I am therefore unconvinced by his promise not to compromise classified information or materials.

The record in this case clearly establishes that the Individual has persistently engaged in behavior that indicates a defect in his judgment and reliability. Furthermore, the Individual has not presented any evidence that resolves the concerns raised by his behavior. Therefore, in view of the criteria set forth in 10 C.F.R. Part 710, and the testimony and documents in the record, I believe that the derogatory information presented in this case casts substantial doubt as to whether granting the Individual’s access authorization would not endanger the common defense and would be clearly consistent with the national interest. It is therefore my opinion that the Individual should not be granted access authorization.

Warren M. Gray

Hearing Officer

Office of Hearings and Appeals

Date: February 1, 2000

(1) The Individual claims that he did not shoot the man, but rather that the man accidentally shot himself in the foot. Hearing Exhibit (Exh.) 16, Personnel Security Interview, pp. 19-22; Exh. 10, Federal Bureau of Investigation Record.

(2)” Hearing Transcript (Tr.), pp. 59-60.

(3) Tr., pp. 26-27.

(4) Exh. 3, Employee Arrest and Conviction Record; Tr. pp. 57-58.

(5) Tr. pp. 44-45.

(6) Tr. p. 44.

(7)” Tr. p. 54.

(8) Tr. p. 47.

(9) The instances wherein the Individual made these committments, and failed to keep them, are referenced in the Notification Letter under Items A(9) and B(3).