Case No. VSO-0323, 27 DOE ¶ 82,847 (H.O. Cronin May 2, 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.

May 2, 2000

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing:December 10, 1999

Case Number:VSO-0323

This Opinion concerns the eligibility of XXXXXXXXX (the Individual) to hold an 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.(1) The Individual’s access authorization was suspended by a Director 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. Pursuant to an investigation, the Operations Office discovered potentially derogatory information that created substantial doubt regarding his eligibility for continued access authorization. Since the DOE was unable to resolve the security concerns in a manner favorable to the Individual, 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.

The administrative review proceeding in this case began with the issuance of a Notification Letter to the Individual. See 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. November 3, 1999 Notification Letter at 1. 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. A telephone conference and hearing were subsequently held pursuant to 10 C.F.R. § 710.25(f) and (g). At the hearing, the DOE Counsel presented two witnesses, a DOE consultant psychiatrist (DOE Psychiatrist) and a Personnel Security Specialist. The Individual testified on his own behalf.

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 sections (h) and (l) of 10 C.F.R. § 710.8 (Criteria H and L). See Enclosure 1 to Notification Letter. Specifically, the Notification Letter states that the DOE possesses information indicating that the 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.” Id. at 1; see 10 C.F.R. § 710.8 (h). The Notification Letter states that the Individual had been examined by the DOE Psychiatrist. The DOE Psychiatrist authored a report which indicates that the Individual was diagnosed as suffering from Adjustment Disorder, Somatoform Disorder, and Personalty Disorder NOS (Not Otherwise Stated), Mixed. In addition, the Notification Letter states that the DOE possesses information indicating that the Individual has engaged in “ 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.” Id.; see 10 C.F.R. § 710.8 (l). The Notification Letter details two incidents where the Individual was arrested by the police. The Individual admits to having been arrested on two occasions but does not believe he is a security risk. Further, the Individual does not believe that he now suffers from any type of mental illness.(2)

C. The Standard for Review

“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.

A DOE administrative proceeding under 10 C.F.R. Part 710 is not a criminal proceeding in which the burden is on the government to prove the individual guilty beyond a reasonable doubt. See Personnel Security Hearing, (Case No. VSO-0078), 25 DOE ¶ 82,202 (1996), aff’d, Case No. VSA-0078, 25 DOE ¶ 83,016 (1996) (affirmed OSA, 1996). 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). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing 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. § 710.27(d). See Personnel Security Hearing, (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed OSA, 1996), and cases cited therein. This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard for the granting of security clearances indicates “that security determinations should err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). For the reasons discussed below, I find that the Individual has not met his burden in this case.

II. Analysis

A.Criterion L

In 1997, the Individual’s wife moved from their home. DOE Exhibit (DOE Ex.) 2 at 4. Afterwards, the Individual was informed by his daughter that his wife was having an affair with another man (boyfriend). Id. at 5. On the night of June 20/21, 1997, the Individual drove to the boyfriend’s house in an attempt to get pictures of his wife with her boyfriend to use in his impending divorce proceeding. Id.; DOE Ex. 6A. The Individual knocked at the door but no one answered. DOE Ex. 2 at 6. The boyfriend reported that sometime after midnight the Individual started banging at the door, and after seeing the Individual go to the rear of their house with a flashlight, the boyfriend called the police. DOE Ex. 6A at 10. The Individual admits to climbing up several rungs of a ladder in the back of the boyfriend’s house. Tr. at 144. Upon noticing the arrival of the police, the Individual ran, hid in a nearby orchard, and then left the area. DOE Ex. 6A at 12-13. Subsequently, the Individual was arrested for trespassing, disturbing the peace, and obstructing and delaying a police officer - all misdemeanor offenses. DOE Ex.6A at 14. These charges were later dismissed.

The Individual’s second arrest occurred on November 1, 1997. At approximately 9:05 p.m., the Individual appeared in the boyfriend’s front yard. DOE Ex. 3 at 1. While in the boyfriend’s yard, the Individual punctured all four tires of the boyfriend’s truck and inflicted damage to the boyfriend’s two snowmobiles, go-cart, four wheeler, and hot-tub cover. Id. at 1. The Individual was subsequently arrested, pled guilty to malicious injury to property, was placed on probation for five years and ordered to pay restitution of approximately $4,900. DOE Ex. 4 at 1.

At the hearing, the Personnel Security Specialist testified that she conducted a Personnel Security Interview with the Individual, during which he described the two arrests. Transcript of Hearing (Tr.) at 13. The Personnel Security Specialist stated that there were discrepancies between what the Individual told her at the Personnel Security Interview and the police report. Id. at 13-14. The Personnel Security Specialist indicated that she was not satisfied that DOE had all the necessary information after the Personnel Security Interview, so she recommended a background investigation. Id. at 21. The background investigation raised more questions, because it uncovered another arrest and a two-day stay at a mental health facility for depression.(3) Id. at 22-23. This information led the Personnel Security Specialist to conduct a second Personnel Security Interview. In this Personnel Security Interview they again discussed the first two arrests in further detail.

The Individual does not deny that the events leading to the two arrests occurred. However, the Individual gives a number of reasons why the arrests should not be considered an indication that he is unreliable or untrustworthy pursuant to Criterion L. The Individual asserts that the difficulties with his marriage were a factor in the arrests and that now he is in a healthy relationship with another woman. Further, he now has a better relationship with his ex-wife. Tr. at 138-39. The Individual also asserts that, during the period in which the arrests occurred, he was receiving counseling and treatment for depression. Tr. at 138; DOE Ex.10 at 1; DOE Ex. 5. Specifically, the Individual testified as part of his treatment he received treatment in anger management. Tr. at 161-63. DOE has submitted records from the mental health facility at which he sought treatment for depression.(4) DOE Ex. 5; DOE Ex. 10. Additionally, the record contains a letter from his therapist stating that she had treated the Individual for depression and that the Individual was improving. DOE Ex. 10. The Individual also attributed his lack of judgment to pain medication that he was taking for various surgeries in 1996 and to the combination of medications, specifically his taking pain medicine, “diet” pills, and anti-depressants. Id. at 54.(5)

The information concerning the two arrests substantiates the DOE concerns under Criterion L. Specifically, the June and November 1997 arrests involve conduct that demonstrates extremely poor judgment on the part of the Individual. In the June 1997 incident the Individual sought to take a picture of his wife and her boyfriend sometime around midnight when it appeared no one was awake at the premises. Further, the Individual then fled upon the approach of police. In the November 1997 incident, the Individual caused sufficient property damage for a court to order him to pay approximately $4,900 in restitution.(6) In other cases, OHA Hearings Officers have found that behavior that leads to an arrest demonstrates poor judgment on the part of an individual and the inability to control his actions. This brings the individual's reliability into question and raises a concern that in the future the individual may not obey laws, regulations or rules pertaining to security. See Personnel Security Hearing, Case No. VSO-0194, 27 DOE ¶ 82,771 at 85,634 (1998); Personnel Security Hearing, Case No. VSO-0172, 27 DOE ¶ 82,762 (1998) (breaking the law raises concerns that the individual may not obey national security regulations).

These two incidents raise significant issues as to the Individual’s judgment which are not mitigated by the record in this case. The Individual has pointed out that the two incidents were related to his deteriorating marriage to his first wife. However, there is insufficient evidence in the record for me to conclude that if the Individual ever again finds himself in another stressful situation similar lapses in judgment will not occur. The June 30, 1999 Letter from the Individual’s therapist does indicate that she had treated the Individual for depression and that her records indicate that the Individual was improving. However, the June 30 Letter also states that the Individual missed his last scheduled appointment in November 1998, and because she hasn’t seen the Individual since 1998, she could not offer an opinion on his current mental status and prognosis.(7) DOE Ex. 10. Without additional evidence as to the Individual’s current prognosis with regard to his depression, additional information as to his anger management skills or additional testimony concerning whether the Individual’s problems with judgment were caused by drug interactions, I cannot find that the Individual has mitigated the Criterion L concerns.(8)

B. Criterion H

Criterion H pertains to information that a person 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). Because of the concerns raised by the Individual’s two arrests and discrepancies between various reports and the two Personnel Security Interviews held with the Individual, the Individual was referred to the DOE Psychiatrist who performed a psychiatric evaluation of the Individual. Tr. at 29. In his May 19, 1999 report of this evaluation, the DOE Psychiatrist diagnosed the Individual with a number of mental conditions, including adjustment disorder and somatoform disorder. DOE Ex. No. 9 at 7. Further, the DOE Psychiatrist diagnosed the Individual with a personality disorder (mixed or Not Otherwise Specified (NOS)). Id. at 8. All of these diagnoses led to the DOE Psychiatrist’s ultimate opinion that the Individual has a mental condition which “may cause a significant defect in judgment and reliability.” Id. at 9.

The DOE Psychiatrist testified at length during the hearing. He stated that the two tests that he administered to the Individual, the Minnesota Multiphasic Personality Inventory, 2nd edition, Revised (MMPI-2R) and Millon Clinical Multiaxial Inventory, 3rd Edition (MCMI-III), had a borderline validity, indicating that the Individual needs to portray himself in a positive light. Tr. at 76, 82. In making his diagnosis, the DOE Psychiatrist relied on the MMPI-2R and MCMI-III along with the police reports concerning the June 1997 and November 1997 arrests and his examination of the Individual. Tr. at 88-89; DOE Ex. 9 at 6. He found that the Individual may have adequate capability for judgment and reliability in some situations, but the aggressive, assaultive, and destructive behavior that occurred in the past could be repeated in the right situation. DOE Ex. 9 at 8; Tr. at 102-03. In his Report, the DOE Psychiatrist surmised that with therapy the Individual could learn to control his behavior in stressful and emotional situations. DOE Ex. 9 at 9. However, the DOE Psychiatrist also testified that the results of the tests show that the Individual is resistant to therapy. Tr. at 87.

The record in this case indicates that sufficient evidence exists to conclude that DOE properly invoked Criterion H. The DOE has provided evidence which shows that the Individual has been diagnosed by a psychiatrist, a licensed physician, as suffering from a mental illness which may cause a significant defect in judgment and reliability. However, a finding of derogatory information does not, however, end the evaluation of the evidence concerning the Individual’s eligibility for access authorization. See Personnel Security Hearing, (Case No. VSO-0154), 26 DOE ¶ 82,794 (1997), aff'd, 27 DOE ¶ 83,008 (OHA 1998) (affirmed OSA, 1998). In this case, the Individual attempts to mitigate the DOE Psychiatrist’s diagnoses by stating that the doctor that saw him at the mental health facility and the doctor that he visited after his stay at the mental health facility both believed that he did not need any further counseling. Tr. at 103. Further, the Individual stated that he reviewed the DOE Psychiatrist’s statements with a counselor and the counselor did not agree with the DOE Psychiatrist. Id. at 104.

I find that the Individual has failed to convince me that the security concerns raised by the DOE have been mitigated. In reviewing the DOE Psychiatrist’s testimony and the factual basis behind it, I find the DOE Psychiatrist to be credible. The Individual has not presented any expert testimony or other evidence from a medical professional to support his claim that he does not need any additional therapy or counseling or to provide evidence which would challenge the DOE Psychiatrist’s opinions.(9) Given the evidence before me, I find that the Individual has not presented sufficient evidence for me to conclude that the Criterion H concerns have been mitigated.

C. Other Mitigation

The Individual also argues that he does not believe that he could be subject to coercion since he gave the DOE all the information it requested about all areas in his life. Id. at 42. I find this argument to be unpersuasive. While DOE is aware of the Individual’s past behavior, the evidence in this case indicates to me that there is a significant risk that the Individual may demonstrate poor judgment in the future.

III. Conclusion

As explained in this Opinion, I find that the DOE properly invoked 10 C.F.R.§§710.8(h) and (l) in suspending the Individual's access authorization. The information before me indicates that the Individual may in some circumstances demonstrate poor judgment in the future. Additionally, while the Individual has made a commendable attempt to try to reform his behavior, as of this date there is not sufficient evidence for me to conclude that the factors which contributed to his past history of poor judgment have been resolved. In view of Criteria H and L, and the record before me, I cannot find that reinstating the Individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, in my opinion, the Individual's access authorization should not be reinstated.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that either the Office of Security Affairs or the Individual may file a request for review of this Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. The party seeking review of the Opinion must file a statement identifying the issues that it wishes to contest 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). Submissions must be served on the Office of Security Affairs at the following address:

Director

Office of Safeguards and Security, NN-51

Office of Security Affairs

U.S. Department of Energy

19901 Germantown Road

Germantown, MD 20874

Richard A. Cronin, Jr.

Hearing Officer

Office of Hearings and Appeals

Date: May 2, 2000

(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.

(2)The Notification Letter also details a number of other incidents which DOE believes show the Individual’s unreliability pursuant to Criterion L. Because, I find that the Individual’s behavior concerning the two arrests sufficiently substantiates DOE concerns under Criterion L, I will not consider the remaining incidents detailed in the Notification Letter.

(3)In light of my Recommendation based upon the two arrests detailed above, I need not consider whether the third arrest, of which the charges were subsequently dropped, has any merit concerning Criterion L.

(4)The DOE has not raised the Individual’s depression as a concern under Part 710.

(5)I note that since I am only basing my decision on the two arrests, I do not need to discuss the allegations made in those interviews.

(6)I note that since I am only basing my decision on the two arrests, I do not need to discuss the allegations made in those interviews.

(7)He stated during his first Personnel Security Interview that he believed the amount he was required to pay to the victim of his crime was exorbitant. DOE Ex No. 2 at 32. However, he stated that he wanted to “get it over with.” Id. Nevertheless, I find the Individual’s plea of Guilty to the charge of Malicious Injury to property and the Court’s finding after taking testimony from the Individual and the boyfriend to be persuasive that the Individual did in fact cause damage in that amount of money. See DOE Ex. 4.

(8)The Individual states that he could not afford to continue seeing the therapist since his insurance would no longer pay for treatment. Tr. at 169. Even if I assume this is true, this would not affect my conclusion since my only concern is the Individual’s current fitness for a security clearance.

(9)The DOE Psychiatrist did testify that in his opinion, the Individual’s taking of Prozac, an anti depressant, Flexeril, a muscle relaxant and a “diet pill” could cause adverse effects such as a “serotonin storm” where the Individual would get aggravated and do “adverse things.” Tr. at 101-02. However, the DOE Psychiatrist also testified that the two arrest incidents showed elements of planning and conscious awareness which would contradict the incidents being caused by a “serotonin storm.” Id. at 102.

(10)I did hold open the record in this matter to allow the Individual to submit expert medical testimony. The Individual did not submit any evidence.