Case No. VSO-0422, 28 DOE ¶ 82,796 (H.O. Lipton May 1, 2001)

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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 1, 2001

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case: Personnel Security Hearing

Date of Filing: December 5, 2000

Case Number: VSO-0422

This Opinion concerns the eligibility of XXXXXXXXXXXXXX (hereinafter "the individual") to hold an access authorization.(1) The regulations governing the individual's eligibility are set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material." This Opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual’s suspended access authorization should be restored. As discussed below, I do not recommend restoration in this case.

I. BACKGROUND

This administrative review proceeding began with the issuance of a Notification Letter by a Department of Energy (DOE) Office, informing the individual that information in the possession of the DOE created substantial doubt pertaining to her eligibility for an access authorization in connection with her work. In accordance with 10 C.F.R. § 710.21, the Notification Letter included a statement of the derogatory information.

The first concern cited in the Letter involves information indicating that in an evaluation letter of June 2000, a DOE consultant psychiatrist (DOE psychiatrist) diagnosed the individual as suffering from a “personality disorder not otherwise specified.” He concluded that this disorder may cause a significant defect in her judgment and reliability. According to the Notification Letter, this constitutes derogatory information under 10 C.F.R. § 710.8(h)(hereinafter Criterion H). (2)

The Notification Letter also cited derogatory information which falls within 10 C.F.R. § 710.8(l) (hereinafter Criterion L).(3) The derogatory information that supports this concern relates to the judgment and reliability problem diagnosed by the DOE psychiatrist, and to the individual’s use of alcohol and marijuana.

With regard to the alcohol and marijuana concerns, the Notification Letter stated that (i) the individual was arrested, fined and received a suspended license in 1989 for driving under the influence (DUI); (ii) the individual was arrested and fined in July 1994 for public intoxication; and (iii) she was arrested again in March 2000 for DUI. The March 2000 charge was reduced to reckless driving, and the individual was fined, placed on supervised probation and had a restricted driver’s license for one year. (4)

The Notification Letter also stated that in a 1998 Questionnaire for National Security Position (QNSP) the individual was asked to respond to the question “Have you ever been charged with or convicted of any offenses(s) related to alcohol or drugs?” The individual listed the 1989 and 1994 alcohol-related offenses noted above, but failed to list a 1984 arrest for possession of marijuana.

Finally, with respect to Criterion L, the Notification Letter referred again to the evaluation by the DOE psychiatrist, who found that the individual exhibited a pattern of poor judgment. Specifically, the DOE psychiatrist found that this individual is insecure, and when she is involved in relationships feels as if she has to give in and “doesn’t have a mind of her own.” The DOE psychiatrist believed that due to the individual’s lapses in judgment and her need to go along with others, there is a significant probability that the individual will be in legal trouble again.

The Notification Letter informed the individual that she was entitled to a hearing before a Hearing Officer in order to respond to the information contained in that letter. The individual requested a hearing, and that request was forwarded by the DOE Office to the Office of Hearings and Appeals (OHA). I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was convened.

At the hearing, the individual represented herself. The individual testified on her own behalf, and presented the testimony of a psychological counselor whom she had consulted, and that of three friends and a supervisor. (5) The DOE Counsel presented the testimony of the DOE psychiatrist.

II. Hearing Testimony

A. The Individual

The individual testified about her background, her three unsuccessful marriages and her current relationships with family members and friends. Transcript of Personnel Security Hearing (Tr.) at 20-26, 29-30, 60-64. She also discussed her alcohol use and the problems she has had with alcohol. Tr. at 26-29. She stated that as of March 2000, she had completely ceased using alcohol. Tr. at 29.

B. The DOE Psychiatrist

The DOE Psychiatrist reiterated the diagnosis that he reached in his June 2000 evaluation letter that this individual suffers from a personality disorder not otherwise specified and that this condition has caused a defect in her judgment, and may continue to do so. Tr. at 98. He believed that this disorder manifested itself in the individual’s repeated problems in asserting herself in her relationships with her family, with her three successive husbands and with her friends. He believed that she had exercised poor judgment in the way she related to her husbands, acquaintances and, to some extent, her daughters. Tr. at 40-42. He stated that the defective judgment was also displayed in the individual’s repeated use of alcohol, given the fact that it created legal problems for her, and especially since she knew it was a cause for concern with the DOE, and therefore could affect her job. Tr. at 36-41.

C. The Counselor

The counselor(6) did not agree with the diagnosis of the DOE psychiatrist that this individual suffers from a personality disorder not otherwise specified. She indicated that she would not characterize the individual’s condition as a personality disorder, but rather as an adjustment disorder. Tr. at 91. The counselor testified that the individual functions best in a situation that is “clear cut, black and white,” such as in her job, where she knows what is expected of her. Tr. at 75-79. The counselor further stated that due to a lack of assertiveness, the individual does not function as well in her personal life, when “things are much more vague and less clear cut as far as. . . what is the right thing to do or [making] definite clear judgments.” Tr. at 74. The counselor believed that because the individual is not assertive in her personal life, it might appear that she suffers from the problems diagnosed by the DOE psychiatrist. The counselor did not give a direct response to questions concerning whether the individual’s lack of assertiveness in her personal life caused her to experience judgment problems. Tr. at 89-91. The counselor testified that the individual told her that she was continuing to use alcohol, but she did not believe that the individual was chemically dependent. Tr. at 81.

D. The Supervisor

The Supervisor testified that he has known the individual for about eight years and that the individual is a good employee who has consistently exercised good judgment on the job. Tr. at 121, 123. He indicated that he has virtually no social contact with her, and knows little about her private life. Tr. at 121, 123-25.

E. The Friends

Friend #1 stated that he visits the individual several times a week in her home, that he drinks alcohol during those visits. He said he and the individual used to drink together, but that recently he has not seen the individual use alcohol. Tr. at 129-30, 131-132. He was only aware of one of the individual’s arrests involving alcohol. Tr. at 135. He was familiar with the individual’s family. Tr. at 133.

Friend #2 stated that she has known the individual for about ten years, and that they socialize about once a week. Tr. at 141. This friend stated that she has not seen the individual use alcohol in all the years she has known her. Tr. at 141. She was only aware of one of the individual’s three marriages, and was not aware that the individual had been arrested. Tr. at 143-44, 146.

Friend #3 stated that he has known the individual about eight or ten years. Currently, he lives out of town and gets together with the individual on a friendly basis once or twice a month. Tr. at 151. He stated that he and the individual had a more serious relationship several years ago. Tr. at 157. He knew that the individual had been married, but did not know how many times or to whom. Tr. at 153-54. He was not fully aware of her arrest record. Tr. at 154. He stated that he and the individual have consumed alcohol together within the last 2½ or 3 months. Tr. at 155.

III. Analysis

A. Applicable Standards

A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we apply a different standard, which is designed to protect national security interests. 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 at the hearing with evidence to convince the DOE that granting or 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).

This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) ("the clearly consistent with the interests of the national security test" for the granting of security clearances indicates "that security-clearance determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)(strong presumption against the issuance of a security clearance). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995).

Once a security concern has been found to exist, the individual has the burden of going forward with evidence to rebut, refute, explain, extenuate or mitigate the allegations. Personnel Security Hearing (VSO-0005), 24 DOE ¶ 82,753 (1995), aff’d, 25 DOE ¶ 83,013 (1995). See also 10 C.F.R. § 710.7(c).

As discussed below, I find that the individual has not met her burden to mitigate the concerns regarding her judgment, reliability and trustworthiness.

B. Criterion H

As is evident from the discussion of the hearing testimony, the DOE psychiatrist and the counselor disagree on the diagnosis of this individual’s mental condition. The DOE psychiatrist believes that the individual suffers from a personality disorder not otherwise specified. He testified that this disorder manifests itself as a lack of assertiveness in her personal life and causes her to make poor judgments. The counselor also believes that, due to a lack of assertiveness, the individual has difficulties in her personal life. However, the counselor characterizes this as an adjustment disorder, rather than as a personality disorder not otherwise specified. Tr. at 75, 79. (7)

I need not determine the precise diagnosis of this individual’s mental condition, or which of the experts is correct. They agree that this individual suffers from a mental condition that is causing her to experience difficulties in her personal life. (8) I must therefore consider whether this mental condition causes or may cause a significant defect in her judgment or reliability.

The DOE psychiatrist testified that this condition has already caused the individual to use poor judgment in her personal relationships, and in her excessive use of alcohol. He gave specific examples of that behavior. Tr. at 40-42, 48, 59, 97. He believed that it may also cause her to experience judgment problems in the future. Tr. at 98.

The counselor’s testimony on whether this individual suffers from a judgment problem was not responsive. I asked her several times whether she believed that the individual’s judgment was affected by her lack of assertiveness. She did not provide a straightforward reply. On the first occasion, she responded by indicating that it is “probably hard to say, but . . . she is gaining more insight into it.” Tr. at 84. When I repeated the question, the counselor stated that the individual is an “anxious person.” Tr. at 90. I then again asked the counselor whether in her “opinion as a professional” the individual has judgment problems, and she replied, “I think she is motivated to improve on [her mistakes].” Tr. at 90. When I asked her a fourth time whether she believed the individual had a judgment problem, she stated, “I would not call it a personality disorder, like [the DOE psychiatrist]. I would say it’s more of an adjustment disorder problem.” Tr. at 91. None of these responses addressed the key issue as to whether the individual’s mental condition caused her to have an overall judgment problem. (9) On the other hand, the DOE psychiatrist’s testimony was direct, specific and emphatic on this point. Accordingly, I have concluded that the individual has not brought forward information to convince me that her mental condition does not cause a defect in her judgment.

I must therefore consider whether the individual has demonstrated any rehabilitation from the mental condition causing a defect in her judgment. The counselor believed that the individual had made “a lot of progress between the first and second appointments.” She thought that the individual could possibly overcome her adjustment problem in two or three months. Tr. at 87-88. The DOE psychiatrist’s testimony differed on this point. He stated that personality disorders not otherwise specified “are the warp and woof of the person and they don’t change easily.” He believed that more than three months was necessary, but did not specify how long, in his view, an appropriate course of treatment would take. Tr. at 104. Neither expert described the type of therapy that would be necessary for this individual. However, it is apparent that the individual has not even completed the short-term program recommended by the counselor. The counselor stated that she and the individual “had left it open” as to whether the individual would return for additional counseling after the hearing. Tr. at 87. It is thus clear that the individual has not completed sufficient counseling to be considered rehabilitated.

As is evident from the above discussion, I cannot find that the individual has mitigated the Criterion H security concerns related to a mental condition causing a defect in her judgment.

C. Criterion L

As stated above, Criterion L covers information indicating that an individual is not honest, reliable or trustworthy. According to the Notification Letter, the specific Criterion L concerns in this case are in part identical to the Criterion H judgment concerns discussed above. These involve the individual’s citations involving excessive use of alcohol, and the lapses in judgment in her personal life. Since, as I discussed above, she has not resolved the Criterion H concerns, I find that these Criterion L concerns are also not resolved.

There is another Criterion L concern cited in the Notification Letter. This concern relates to the fact that in responding to Question 23 of a 1998 Questionnaire for National Sensitive Positions (QNSP), the individual failed to disclose that she had been arrested in 1984 for possession of marijuana. Question 23 asked whether the individual had “ever been charged with or convicted of any offense(s) related to alcohol or drugs.” DOE Exh. 8. The individual stated that she omitted the information about the marijuana possession because she misread the question and thought it referred only to whether she had been charged with drug or alcohol use in the previous seven years, which is the way two later, similar questions on this QNSP were posed. Tr. at 22.

This explanation is not very convincing. I fail to see how the individual could have misunderstood a question as to whether she had “ever” been charged with a drug offense to inquire as to whether she had been charged with a drug offense in the past seven years. Such a misreading seems, on its face, implausible. I also note that the individual did reveal a nine year old alcohol arrest, dating from 1989, in response to question 23. I cannot see how she mistakenly thought the question applied only to the last seven years with respect to a drug arrest, but correctly understood it to apply for an indefinite period regarding an alcohol arrest. I am therefore not convinced that the individual misread the question and believed it asked whether she had been charged with a drug offense within the last seven years. The individual has therefore not resolved the honesty concern regarding omission of the drug use charge.

A further concern regarding the individual’s honesty and reliability surfaced at the hearing. The individual testified that she is no longer using alcohol, and that she last consumed an alcoholic beverage in March 2000. Tr. at 29. This assertion was contradicted by her counselor, who believed that the individual was still using alcohol at the time she had her counseling appointments in January 2001, but that she was trying to be more careful. Tr. at 81, 82. Moreover, as stated above, Friend #3 testified that he had seen the individual consume alcohol within the last 2 ½ to 3 months. This testimony certainly gives rise to a concern about the individual’s honesty and trustworthiness. (10) Accordingly, I find that the individual has not mitigated the Criterion L concerns related to her honesty, reliability, and trustworthiness.

IV. CONCLUSION

Based on the foregoing, I find that the individual has not mitigated the Criteria H and L security concerns cited in the Notification Letter. I therefore do not recommend that her access authorization be restored.

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 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 with 20 days of receipt of the statement.

Virginia A. Lipton

Hearing Officer

Office of Hearings and Appeals

Date: May 1, 2001

(1)An access authorization (or security clearance) is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.

(2)Criterion H includes information 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.

(3)Criterion L includes information that the individual has “engaged 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.”

(4)The Notification Letter referred to three other traffic arrests in 1996 and 1997, purportedly involving this individual. However, the DOE counsel indicated at the hearing that the DOE Office decided not to include these incidents as part of the security concerns in this case. Transcript of Personnel Security Hearing at 7-8.

(5)The counselor and the three friends gave their testimony by telephone.

(6)The counselor is a licensed clinical social worker. Tr. at 70.

(7)The DOE psychiatrist explained, cogently in my view, why the counselor’s opinion that the individual suffers from an adjustment problem is incorrect. He stated that an adjustment problem is a response to an unusual event that occurs in a person’s life and the emotional reaction is greater than expected. The DOE psychiatrist saw no unusual events in this individual’s life that triggered an emotional reaction. He saw only continuing relationship problems. Tr. at 107-08.

(8)Based on the testimony of the two experts and the supervisor, I believe that the individual’s mental condition manifests itself in her private relationships, but it has not yet caused any problems in her work. However, an excellent work record is not sufficient to resolve questions about eligibility for access authorization. The holder of a security clearance must demonstrate good judgment and reliability outside the workplace as well as on the job, since poor judgment off the job could pose an unacceptable security risk. E.g., Personnel Security Review (Case No. VSA-0371), 28 DOE ¶ 83,015 (2000), aff’d (OSA March 16, 2001); Personnel Security Review (Case No. VSA-0328), 28 DOE ¶ 83,009 (2000), aff’d (OSA October 23, 2000); Personnel Security Review (Case No. VSA-0289), 27 DOE ¶83,025 (2000), aff’d (OSA May 18, 2000).

(9)The counselor thought that due to the individual’s desire to do well, her judgment on the job would probably be good. Tr. at 89. As I indicated in Note 8 above, security concerns about judgment extend beyond behavior in the workplace.

(10)Overall, I found that the individual’s three friends who testified on her behalf did not know her very well. They seemed to have very little knowledge about the individual’s background and her relationships. E.g., Tr. at 135, 144-146, 154. Friends #2 and #3 did not see her very often. E.g., Tr. at 140, 145, 159. I have therefore given little weight to their opinions as to her reliability and trustworthiness.