Case No. VSO-0327, 27 DOE ¶ 82,844 (H. O. Mann April 20, 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.
April 20, 2000
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer's Opinion
Name of Case: Personnel Security Hearing
Date of Filing: December 28, 1999
Case Number: VSO-0327
This Opinion concerns the eligibility of XXXX (hereinafter "the individual") to hold an access authorization (also called a security clearance). The individual's access authorization was suspended under the Department of Energy (DOE) regulations set forth at 10 CFR 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 restoring the individual’s access authorization.
Background
The individual was employed by a contractor at a DOE facility for many years, and he held an access authorization before it was suspended. The local DOE security office issued a Notification Letter to the individual on November 23, 1999. The Notification Letter alleges under 10 CFR § 710.8(f) that the individual “has deliberately misrepresented, falsified, or omitted significant information from a Questionnaire for National Security Positions (QNSP).” The Notification Letter also alleges under 10 CFR § 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 security concerns in this case are based on the fact that on March 5, 1990, and on June 26, 1996, the individual signed Questionnaires for Sensitive Positions (QSPs) in which he claimed he had been awarded a XXXX degree in XXXX, and in a Personnel Security Interview (PSI) on December 17, 1991, the individual stated he had a XXXX, even though he has never received the degree. The matter came to light in XXXX when someone XXXX alleged the individual did not have a XXXX, and the contractor referred it to DOE security. The individual admitted that information was false or misleading in a second PSI held on September 17, 1999.
Because of these security concerns, the case was referred for administrative review. The individual filed a request for a hearing on the concerns 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.
At the hearing, the DOE Counsel called two witnesses, a DOE security specialist, and a DOE consultant psychiatrist who evaluated the individual at the request of the local DOE security office to determine whether the individual had a mental condition that affected his judgment and reliability. The individual testified on his own behalf, and called ten other witnesses, all of whom had worked closely with him at the DOE facility. The DOE submitted 13 written exhibits, and the individual submitted a written response to the Notification Letter. The individual also submitted 38 letters from professional colleagues attesting to his character, explaining his importance to the DOE program, and supporting the restoration of his access authorization.(1)
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 CFR § 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 CFR 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 CFR § 710.21(b)(6). Once DOE has presented derogatory information affecting an individual’s eligibility for access authorization, the individual must come forward with evidence to convince the DOE that restoring his or her access authorization “would not endanger the common defense and security and would be clearly consistent with the national interest." 10 CFR § 710.7(a). See Personnel Security Hearing (Case No. VSO-0013), 24 DOE ¶ 82,752 at 85,511 (1995) and cases cited therein. For the reasons discussed below, I am not convinced that this individual's access authorization should be restored at the present time.
Findings of Fact
The facts underlying the security concerns in this case are not disputed. The individual concedes that he gave false information about his degree status to the DOE on three separate occasions, as alleged in the Notification Letter. The hearing focused on the individual’s assertion that mitigating circumstances exist that warrant restoration of his access authorization.
A XXXX degree is not a requirement for any of the positions the individual held with the DOE contractor. Tr. at 247. The requirement for the positions that the individual held is “XXXX or equivalent experience,” and the individual was eminently qualified under this standard. Tr. at 138; 201. Moreover, a XXXX of the DOE facility did not have a XXXX degree, and a number of its XXXX do not have the degree. Tr. at 165; 190. Many of the witnesses who testified at the hearing pointed out that the individual had nothing to gain by providing inaccurate information about his degree status, since it was irrelevant to his career at the DOE facility. Tr. at 87; 106; 171; 252. Several witnesses also mentioned that it was widely known among the XXXX that the individual did not have a XXXX degree. Tr. at 94; 106; 247. At the DOE facility, the atmosphere is informal, people address each other by their first names, and the XXXX is not used. Tr. at 89. In the institutional culture of the facility, an employee’s level of professional achievement is based on his practical accomplishments, rather than his educational credentials. Tr. at 53; 88-89; 93. It is unquestioned that the individual’s stellar performance in the XXXX of the facility, and his leadership ability, are what enabled him to attain the positions he held.
Considering the institutional culture where he worked, it is difficult for me to understand why the individual repeatedly misrepresented to DOE security that he had received his XXXX, when his lack of that degree was irrelevant to his career. The individual tried to explain how it happened, and the following story emerges from his statements in the 1999 PSI, his statements to the DOE consultant psychiatrist, his written response to the Notification Letter and his testimony at the hearing. Before he came to the DOE facility, when the individual was XXXX. He intended to complete his XXXX while working at the DOE facility. The DOE contractor knew the individual had not completed his XXXX when it hired him, and on the first security form he filled out when he applied for a DOE access authorization, the individual wrote “XXXX anticipated.” DOE Exhibit 11. However, less than a year later, the individual’s XXXX. Individual’s December 2, 1999 Statement, DOE Exhibit 3 at 1.
According to the individual, he then devoted himself to his work at the DOE facility in order to XXXX. Tr. at 190. He achieved immediate success and his career began to take off. Tr. at 200-201. After one or two years, the individual began to write again, and fully intended to complete his XXXX, when he XXXX. Tr. at 192. According to the DOE psychiatrist, the individual “simply put this task away, and concentrated on his XXXX.” Psychiatrist’s Report, DOE Exhibit 6 at 2. The individual testified that he decided then that he was not going to worry about the past, but just work on the future, and forget about “all this stuff” with his university. Tr. at 192. According to the individual, this was a defining moment in his life, and until very recently, it has been difficult for him to think about anything associated with that period.
The individual testified that as time went on, he “got embarrassed with the ?XXXX this,’ ?XXXX that’” because he had never XXXX Tr. at 191. When the individual filled out his QSP form for a periodic reinvestigation in 1990, he wrote that he had received his XXXX in XXXX. DOE Exhibit 10. The individual concedes that he handled himself improperly in the 1991 PSI when the interviewer told him the university’s records did not indicate he had earned the degree, and he gave vague, evasive answers to her questions about why he had not provided proof to DOE security that he had XXXX. 1991 PSI Tr. (DOE Exhibit 8) at 32-34. Prophetically, the DOE interviewer warned the individual in the 1991 PSI, “what will happen, . . . if you don’t, this is liable to come up again.” 1991 PSI Tr. at 35. In his 1996 QSP form, the individual again wrote that he had received a XXXX in XXXX. DOE Exhibit 9.
The DOE psychiatrist who evaluated the individual reported that he “has never made any pretensions about being a XXXX, and neither did he represent himself as such. People however presumed that XXXX, and after a while he stopped denying that XXXX. In his own words, he said that he ?sort of accepted it,’ which he now realizes was a big mistake. He said that he became ?involved in a lie, found myself in a trap.’” DOE Exhibit 12 at 2. The DOE psychiatrist concluded “There is no evidence to show that there is a pattern of recurrent lying or dissembling. What stands out of course is the fact that he has, at least in a passive manner by his own report, allowed people to believe XXXX.” Id. at 6. The DOE psychiatrist opined that the individual’s conduct “cannot be explained in terms of a psychiatric disorder or illness,” and that his mental condition does not cause a defect in his judgment and reliability. Id.
At the hearing, the individual conceded that he has no excuse for giving false information about his academic credentials to DOE security, and he accepted full responsibility for his actions, which he characterizes as “a singular mistake.” Tr. at 207. According to the individual, “I compartmentalized that part of my life because of the personal experience that I had . . . [his university], XXXX and such.” Tr. at 194; DOE Exhibit 3 at 2. The individual testified that it was something he “wanted just to avoid,” and “just show everyone . . . I can do a good job . . . that was my motivation.” Id. The individual is very remorseful, and he and his family have suffered XXXX. Tr. at 207. He stated that “all this form stuff is so stupid,” because while “many people assumed XXXX . . . most of the people I worked with knew XXXX.” Tr. at 192.
Evidence of Mitigating Circumstances
Through his own testimony, the 38 letters from his supporters (DOE Exhibit 12), and the ten witnesses who testified in his behalf at the hearing, the individual attempted to distinguish the rest of his life from the “singular mistake” he made when he misrepresented his academic credentials to DOE security. The testimony of the individual’s witnesses–all people who worked with him–is the mostlaudatory I have ever heard about any person in my work as a DOE Hearing Officer. Those witnesses touched on the individual’s personal behavior over the past two decades, his honesty and integrity, his careful handling of security, classification, and counterintelligence matters, why the individual wants to keep his clearance to help with the DOE program in the future, and why they believe it is in the national interest that his clearance be restored.
A counterintelligence officer at the DOE facility testified about how the individual had worked closely with him over the years to handle a delicate situation with a long-term foreign visitor, protect classified information, and cooperate with an FBI investigation in an espionage case involving a former employee. Tr. at 48-49. This witness observed that the individual never misrepresented his academic credentials to him. Tr. at 51. He also noted that practical accomplishments carried more weight than educational credentials, and that “you can rise to the top at this [facility] without a XXXX” Tr. at 54. He thought that the individual’s one misstep should be forgiven, since it was out in the open, and could not be used against him. Tr. at 56. Finally, the counterintelligence officer testified that he had no doubts that the individual should be holding a DOE clearance, and that he thought the individual had always been trustworthy, and could still be trusted with national security information. Tr. at 54-59.
Several XXXX testified from their personal knowledge working with the individual at the DOE facility. All of these witnesses mentioned how carefully the individual handled classified information. The first XXXX described the suspension of the individual’s security clearance as “a travesty” because “he’s forthright in everything that he does. To me, he’s extremely honest, he has no hidden agendas . . . he is technically very smart and he is very empathetic when it comes to people.” Tr. at 63-66. According to this witness, “there’s absolutely no reason to suspect that [the individual] would not handle the country’s secrets in a proper manner.” Id. He denied it would change his mind if the individual had signed the 1990 and 1996 forms saying he got a XXXX. Tr. at 73. This XXXX related that he also did not have a XXXX, and he got tired of telling people he was XXXX when they told him “you should be a XXXX,” so he “stopped at some point.” Tr. at 68. However, the first XXXX admitted he did not know the circumstances in which the individual “put down that he had a XXXX on something when he did not have a XXXX” Tr. at 69-70.
The second XXXX described the individual’s entrepreneurial skill that “drove the whole program forward,” his honesty, and praised his straightforwardness as “near a hundred” on a hundred point scale. Tr. at 80-92. This witness characterized the performance-oriented “engineering culture” that dominated the DOE facility, and said that “having a XXXX is very close to an irrelevance here.” Tr. at 88-89. He maintained that the individual had nothing to gain from claiming he had a XXXX, since “it’s not like we were in an academic institution where you’d have to maybe cover up something like this.” Tr. at 93. The second XXXX contrasted the DOE facility, where it made no difference whether the individual had a XXXX, with a situation when the individual was nominated for an office in a XXXX, and carefully worded his description to make it clear that he did not have his XXXX Tr. at 95. Finally, the second XXXX praised the individual as being one of the rare people “who can bring a vision to fruition.” Tr. at 97.
The third XXXX thought that the individual’s misrepresentation of his XXXX status was “an unfortunate mistake,” though he did not know the details of what happened. Tr. at 102. This witness knew the individual did not have his XXXX, and considered the individual “one of the best XXXX in the country” who had always been honest with him. Id. According to this witness, having a XXXX was not critical, and advancement at the facility was based on “the ability to get the job done.” Tr. at 107. The third XXXX’s belief that the individual is an honest and trustworthy person who should have a clearance was unaffected by his knowledge that the individual had submitted false information on DOE security forms.
The fourth XXXX said he had never seen anything that would make him question the individual’s honesty and veracity. Tr. at 117. This witness thought the individual was “exceptionally fair and has the greatest integrity in dealing with people.” Id. This witness also pointed out that the individual negotiated contracts with private businesses who guarded their proprietary information as assiduously as the government guarded classified information. Tr. at 127-128. According to this witness, the individual’s dealings with these outside businesses were impeccable. Tr. at 118. Sympathizing with the individual’s situation, he explained that many XXXX who came to the DOE facility before finishing their XXXX found it difficult to XXXXX once they began working there. He described the situation as unfortunate, because the management pressures were enormous, and the national security nature of the jobs “make your XXXX work pale to almost insignificance.” Tr. at 120. When I asked this witness to consider whether the individual’s actions made him less trustworthy, he said “I personally think it’s a mountain out of a mole hill compared to–if there was any question that [the individual] was really not correctly representing his capabilities as a XXXX, I think that could possibly be an issue. I don’t think that’s the case.” Tr. at 122. He thought that the individual’s widely-recognized accomplishments as a XXXX overshadowed his academic degree. Tr. at 123-124. Finally, the fourth XXXX had no doubt that the individual should have a security clearance because it would put the country at risk to lose someone as gifted as the individual. Tr. at 127.
The fifth XXXX said that the individual had been very honest and straightforward with him. Tr. at 132. According to this witness, the individual “set up an exemplary organization” which he led “by his own energy and inspiration, and set very high goals for everyone, XXXX goals, but also goals of being open and straightforward that percolated the whole organization.” Tr. at 133. This witness was surprised by the individual’s conduct, and felt it was “clearly a mistake and it should not have been done.” Tr. at 134. This witness did not know why the individual had done it, whether as “a sin of omission, an oversight, or maybe it was something that he was embarrassed about and it was a sin of commission.” Tr. at 135. But regardless of the individual’s intention, the fifth XXXX still would not question the individual’s trustworthiness because of his long history and extensive personal experience working with the individual. Tr. at 136. According to this witness, while what the individual did was wrong, “it was not an issue of fraud” in his mind because “clearly [the individual] is an enormously talented XXXX, and whether he had a XXXX or not, it would be completely irrelevant had he been open about it.” Tr. at 138. This witness described the individual as “very patriotic,” “the finest person I know,” and “probably the finest man on Earth.” Tr. at 139. Finally, he urged that the individual’s “personality and sense of goodness” be considered as mitigating circumstances on the issue of restoring his clearance. Tr. at 140.
The sixth XXXX echoed the view expressed by his colleagues that, even knowing the individual had misleading information on his security form, he still would not question the individual’s honesty. Tr. at 163. This witness did not think there was “the effort of deception, just because of the widespread nature of the knowledge that [the individual] did not have a XXXX” Tr. at 166. When this witness first met the individual, who was then trying to recruit him, the individual “pointed to his success as a XXXX here, and his rise as a XXXX here without a XXXX, as a testament to the fact that the [facility] valued results.” Tr. at 164. The witness also commented on the dilemma of XXXX who do not have XXXXs, when they are addressed as XXXX in XXXX, observing that “it gets tiresome” correcting people, especially when they are deferring to someone for their expertise. Tr. at 165. This witness also believed it was clearly in the national interest that the individual have a clearance so DOE could consult him as a senior advisor on the XXXX program. Tr. at 168-170.
The individual’s former secretary, who worked with him for more than a decade, was equally complimentary. She called the individual “the most dedicated human being I’ve ever met.” As a clearance holder herself, she had no doubts about the individual’s veracity and truthfulness, and thought his clearance should be restored. Tr. at 155.
The two final witnesses were unable to attend the hearing held at the DOE facility, and they testified a week later during a telephone conference call that was transcribed by the court reporter. The first of these witnesses was a XXXX in the DOE. The DOE official had frequent professional contacts with the individual over a period of many years. He testified that although he had assumed the individual had a XXXX, he never saw it written anywhere, and it never came up in conversation. Tr. at 228. After the XXXX, the individual explained the situation to the DOE official. Tr. at 230. The DOE official was surprised, but he still believed that the individual was honest and trustworthy. Tr. at 230-231. This witness stated that he would like for the individual to have a clearance because he had “high confidence in his technical judgment on certain issues,” and that from his perspective, it would be in the interest of the nation for the individual to have access to classified information and serve as an advisor on the DOE program. Tr. at 232-234. The DOE official noted that he had worked with other XXXX of significant repute who did not have a XXXX, and that this was often a subject of misunderstanding. Tr. at 238.
The final witness was the executive officer at the DOE facility. According to the executive officer, the individual “would go out of his way to try to be scrupulously honest and truthful, and tried to impress upon the people who worked for him that those qualities were vitally important in his relationship with them.” Tr. at 246. The executive officer did not know whether the individual had a XXXX until after XXXX. He remarked that a number of people in the individual’s program knew XXXX, and that it was not “a closely-held secret, it just never came up.” Tr. at 247. He noted that the individual had no advantage to gain from claiming he had a XXXX on the QSP form. Tr. at 252. He reiterated the testimony of other witnesses that “the [facility] operates in a way where people are basically rewarded, promoted based on the work that they do, much more than any degree that they have gotten at some earlier time. . . these jobs require a XXXX or equivalent experience. So it, from the standpoint of the job at the [facility], it really wouldn’t have been very relevant.” Id. The executive director testified that the individual possessed special expertise that DOE XXXX will need to call on in the future, no matter where the individual is employed. Tr. at 249. This witness believed it is in the best interest of the national security of this country for the individual to have his clearance restored and to be able to work with the DOE program. Tr. at 254.
Analysis
At the outset, I find that the Notification Letter issued to the individual in this case properly invoked Criterion F (falsification of significant information in two QSPs and a PSI) and Criterion L (“unusual conduct” which tends to show the individual is not honest, trustworthy or reliable). In essence, the security concerns to be resolved under both of these criteria are one in the same, namely, whether the individual can be trusted again, and if so, when. The individual admits he acted improperly, and he concedes the validity of the security concern under Criterion F. But he maintains that aside from this one great mistake, which he attributes to the lingering effects of a troubled time in his life when he first came to the DOE facility, he is honest and trustworthy, and his clearance should be restored.
There is conclusive evidence showing that although the individual gave false information about his degree status to DOE security, it was irrelevant to his career at the DOE facility, and he gained no advantage as a result. It was widely known among those who worked with the individual that he did not have a XXXX Furthermore, there is much evidence showing that aside from this one mistake, the individual has led an exemplary life, and served the nation with dedication and distinction. An impressive parade of witnesses testified about the individual’s honesty and trustworthiness, not on the basis of his reputation, but on the basis of their long personal experience working with him. All of the witnesses who testified for the individual concede that he made a mistake and it was wrong for him to represent that he had a XXXX to DOE security, but looking at all other aspects of the individual’s life, they nevertheless believe he can be trusted and should have his clearance restored. Several witnesses noted the importance of the individual’s unique XXXX expertise to the DOE program, and testified that they believe it is clearly in the national interest that his clearance be restored.
Previous OHA opinions in personnel security cases have considered clearance holders who gave false information about their credentials on security forms and in PSIs. For example, in a case with some similar facts, an individual employed by a DOE contractor falsely claimed on a succession of three security forms and in a PSI that he had a bachelor’s degree in Mechanical Engineering when he did not. The degree was a necessary qualification for that individual’s job. In recommending that his clearance not be restored, the Hearing Officer found that “the falsification was material and significant, since it went to the very heart of the individual’s eligibility for the position with the DOE contractor.” Personnel Security Hearing (Case No. VSO-0057), 25 DOE ¶ 82,786 (1996), affirmed, 25 DOE ¶ 83,009 (OHA Apr. 5, 1996), affirmed (OSA May 16, 1996). The present case is distinguishable up to a point, because the individual did not need a XXXX degree for any of the positions he held with the DOE contractor, and he clearly met the qualifications for those positions by virtue of his equivalent experience. The fact remains that the individual gave false information to DOE security on three separate occasions about having a XXXX when he did not, and that raises serious doubts about his honesty, reliability and trustworthiness, regardless of the relevance of the degree to the individual’s qualifications for the jobs he held.
In another OHA case, the individual involved gave false information on a Standard Form 171 (government job application) to DOE claiming that he had received bachelor’s and master’s degrees when in fact he had not. For this, he was reprimanded and permitted to submit a corrected 171. More significantly, the individual in that case failed to disclose on a security form that he had been suspended from the Active Army Reserve for giving false information including altered documents about his prior service record, and his training as a pilot in the Marine Corps which he did not complete. Personnel Security Hearing (Case No. VSO-0075), 25 DOE ¶ 82, 799 (1996), affirmed, 26 DOE ¶ 83,005 (OHA Nov. 8, 1996), affirmed (OSA Dec. 30, 1996). As in the present case, the individual denied in a PSI that he had given false information about his credentials, and he also gave vague and evasive answers to questions posed by the interviewer. Similarly, there was no evidence that the individual in that case falsified his military credentials for personal gain in the usual sense, but rather to qualify as a helicopter pilot. That individual served his country in two tours of combat duty in Vietnam. Nevertheless, the Hearing Officer recommended against restoring that individual’s clearance, finding that “an individual who is willing to break the rules by falsifying documents may also not follow rules in the security context.” The Hearing Officer was not persuaded that the individual’s “long history of classified work suggests that he has never compromised his country’s security,” finding that the individual’s past pattern of dishonest conduct outweighed the favorable aspects of his work with DOE.
The present case is more perplexing than that of the helicopter pilot, who lied so he could get the chance to fly in combat, because it involves a pattern of seemingly inexplicable dishonest behavior by an individual who had absolutely nothing to gain from his conduct. The individual’s only known active misrepresentations about XXXX were made to DOE security, where the false information was virtually certain to come back to haunt him sooner or later. Indeed, the DOE security interviewer pointed this out in the 1991 PSI when she presciently warned the individual “this is liable to come up again.” 1991 PSI Tr. at 35. Even though the DOE psychiatrist found that the individual’s conduct “cannot be explained in terms of a psychiatric disorder or illness,” the individual is essentially arguing that he was “a little crazy” in a figurative sense when it came to XXXX According to the individual’s witnesses, the rest of his life stands in such sharp contrast to this one “compartmentalized” area that his falsification should be forgiven. It is also significant that the individual’s falsification was more a pattern of behavior than “a singular mistake,” since it occurred on the 1990 QSP, in the 1991 PSI, and again on the 1996 QSP. While the individual is genuinely contrite and remorseful now that his conduct has been revealed, he did not come forward voluntarily to DOE security and admit the falsification, even though he could have done so at any time over a period of many years.
Measuring the individual’s conduct against the standards set forth in 10 CFR § 710.7(c), I find that it was serious in nature because it could have made the individual vulnerable to coercion. As noted by the counterintelligence officer at the DOE facility, however, that is no longer a concern since the information is now out in the open. Tr. at 55. Since it involved two QSPs and one PSI, I find the individual’s conduct was not an isolated event. In addition, I find that his participation was knowledgeable and voluntary, and it took place when he was a mature adult. On the positive side, I believe that the individual’s falsification of XXXX to DOE security was not typical of his general behavior in the other areas of his life and career, and that he has taken the initial steps toward reforming his behavior and making what amends he can for this one bad aspect of his conduct.
The DOE security program is based on trust, and once an individual has breached that trust, a serious question arises 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), affirmed (OSA, May 22, 1995). The DOE psychiatrist noted that “there is no clear-cut way of determining” how the individual can establish his honesty and reliability, and that in psychiatry, “the main thing we go by is a person’s history.” Tr. at 34. The DOE psychiatrist added that there was nothing in the history that the individual gave to the psychiatrist that indicated he was dishonest in any other aspect of his life. Tr. at 35. On the matter of rehabilitation, the DOE security specialist noted that the primary way to do it was for an individual to admit that he had submitted false information, and then “just go ahead and live your life in such a way that it did not call any further questions to it.” Tr. at 23. At this point in time, less than a year after XXXX the individual lied to DOE security about having a XXXX, I am not convinced that he has yet earned back the right to be trusted by DOE security. This is a close call, since I believe the individual has shown that except for lying to DOE security about a matter described by several witnesses as an irrelevance, he is generally an honest person.
I believe at some time in the future DOE security could well decide that this individual is rehabilitated. While I still have some doubts about the individual, the evidence adduced at the hearing has shown that except for one specific area, he can indeed be trusted to act in the best interest of national security. How much time must pass before this individual’s situation should be reevaluated? It is instructive to compare a recent OHA Hearing Officer opinion, involving another individual of otherwise honorable repute who deceived DOE for many years, in that case by concealing his illegal drug use and multiple violations of his drug certification. My colleague found that even after 19 months, the individual in her opinion had not yet proved that he was rehabilitated from lying, and therefore had not yet earned back the right to be trusted again with a DOE access authorization. Personnel Security Hearing (Case No. VSO-0289), 27 DOE ¶ _____ (1999), request for review pending. I find that the individual’s misdeeds in the present case, while still disturbing because they involved dishonesty, are less serious than concealing illegal drug use and violating a DOE drug certification. The individual in the present case had no benefit to gain from the false information he gave DOE security about XXXX that many people knew he did not have, and which was irrelevant to his career.
The final category of mitigating evidence is the view shared by several witnesses that the individual’s unique knowledge and scientific expertise are so important to the DOE program that it is clearly in the national interest to restore his access authorization, regardless of his past transgressions. It may well be that these witnesses are correct, and the individual’s importance to the DOE program should be considered in reaching a final determination on his eligibility for a security clearance. However, the DOE regulations governing this stage of the administrative review process caution that “[p]ossible impact of the loss of the individual’s access authorization upon the DOE program shall not be considered by the Hearing Officer.” 10 CFR § 710.27(b). The individual can raise this issue again if he seeks review of my opinion.
Conclusion
Based on the entire record in this proceeding, I find that the individual has not resolved the security concerns raised under 10 CFR § 710.8(f) and (l) at this time. I conclude that the individual has not mitigated the concern that he deliberately misrepresented, falsified, or omitted significant information from two QSPs and a PSI. I also find that he has not mitigated the concern that he engaged in conduct which tends to show that he is not honest, reliable or trustworthy. However, I further find that the individual has mitigated the concern that he was subject to pressure, coercion, exploitation or duress which may cause him to act contrary to the best interests of the national security.
For the reasons explained in this Opinion, I find that the individual has failed to convince me that restoring 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 restored at this time.
The regulations set forth at 10 CFR § 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 CFR § 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, SO-21
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: April 20, 2000
(1) These letters are included in the record as DOE Exhibit 12.