Case No. VSO-0441 (H.O. Schwartz November 23, 2001)
* 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.
November 23, 2001
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer's Opinion
Name of Case:Personnel Security Hearing
Date of Filing:March 13, 2001
Case Number: VSO-0441
This Decision concerns the eligibility of XXXXXXXXXXXXX (the individual) to be granted a level “Q” access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” The local Department of Energy Operations Office (the DOE Office) determined that reliable information created a reasonable doubt regarding the individual's eligibility for access authorization under the provisions of Part 710. This Opinion considers whether, on the basis of the evidence and testimony in this proceeding, the individual's access authorization should be granted. For the reasons stated below, it is my opinion that the individual's access authorization should be granted.
I. BACKGROUND
In the course of reviewing records the DOE Office obtained for determining the individual’s eligibility for access authorization, it discovered a number of discrepancies among the various accounts of his prior use of illegal drugs that he had to provided to the DOE and to another potential employer. To review the details of his prior drug use, the DOE Office conducted a Personnel Security Interview (PSI) of the individual on April 4, 2000. During this PSI, the individual provided additional discrepant information. See DOE Exh. 5 (Transcript of April 4, 2000 PSI). The DOE Office also questioned the individual about his having been diagnosed as suffering from bipolar disorder. The PSI failed to resolve the security concerns raised by the individual’s discrepant reporting of prior drug use and by his diagnosed mental condition. Accordingly, the DOE Office referred the individual to a board-certified psychiatrist (the DOE Psychiatrist) for further evaluation of his mental condition. After reviewing the information that the DOE Office provided to him and conducting an evaluation of the individual, the DOE Psychiatrist determined that the individual suffered from bipolar disorder.
Because the individual was unable to resolve the security concerns resulting from his discrepant reporting of prior drug use and his diagnosed mental condition, an administrative review proceeding was initiated. See 10 C.F.R. § 710.9. The DOE Office issued a letter notifying the individual that it possessed information which raised a substantial doubt concerning his eligibility for access authorization (the Notification Letter). The Notification Letter specifies two areas of derogatory
information described in 10 C.F.R. § 710.8. First, the Notification Letter alleges that the individual “deliberately misrepresented, falsified, or omitted significant information from a Questionnaire for National Security Position, a personnel security interview, and written or oral statements made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE access authorization.” See 10 C.F.R. § 710.8(f) (Criterion F). Second, the Notification Letter alleges that the individual “has an illness or mental condition which in the opinion of a board- certified psychiatrist . . . causes, or may cause, a significant defect in his judgment or reliability." See 10 C.F.R. § 710.8(h) (Criterion H). The individual filed a request for a hearing, which was forwarded to the Office of Hearings and Appeals (OHA), and I was appointed as Hearing Officer.
At the hearing, the DOE Office presented one witness, the DOE Psychiatrist. The individual testified on his own behalf and presented six witnesses: two medical professionals, a supervisor, his former wife, and two long-time friends. See Transcript of Hearing, Case No. VSO-0441 (Tr.).
II. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency and the individual, and to render an opinion based on that evidence. See 10 C.F.R. § 710.27(a). The regulations state that “[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). I have considered the following factors in rendering this decision: the nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, including knowledgeable participation; the frequency and recency of the conduct; the individual's age and maturity at the time of the conduct; the voluntariness of the individual's participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. See 10 C.F.R. §§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the testimony and exhibits presented by both sides in this case.
III. FINDINGS OF LAW AND FACT
A. Criterion F: Misrepresentation of Extent of Prior Drug Use
The derogatory information on which the DOE Office has relied in formulating its Criterion F concern is as follows. The DOE Office has compiled statements that the individual made on four discrete occasions concerning his drug use. The four occasions that are the sources of the individual’s statements are (1) a personal history statement that the individual completed in May 1995 as a candidate for other employment, (2) a pre-polygraph examination that the individual underwent in May 1995 as a candidate for the same position, (3) a Questionnaire for National Security Positions (QNSP) that the individual completed in May of 1999 and updated in September of 1999, and (4) an interview (PSI) that a personnel security specialist of the DOE Office conducted with the individual in April of 2000. The information the individual provided on these occasions is inconsistent.
The Personal History Statement was a form that required, among other things, separate written responses concerning the period and frequency of his usage of each of 15 named “substances, drugs, or narcotics.” The individual indicated on that form that he had used marijuana, hashish or hash oil, cocaine, barbiturates, amphetamines, LSD, and psilocybin mushrooms, all within the same period (“late 60s to 1975") and with frequencies ranging from “many” in the case of marijuana to twice for cocaine. DOE Exh. 10 at 3. He also admitted that he had “sold marijuana several times to friends.” Id. at 4. During his Pre-Polygraph Examination, the individual provided details orally to the polygrapher regarding his illegal drug use. Although the figures are not identical to those he had written on the Personal History Statement because they were for the most part more general (for example, he stated he used hashish “definitely less than 20 times” compared to “10" times on the Personal History Statement), they do not contradict those listed on his Personal History Statement. On the other hand, the polygrapher reported discrete dates of last usage for each substance, ranging from 1972 to 1975, whereas in his Personal History Statement the individual gave the same response for each substance.
More than four years later, on his 1999 QNSP, the individual was asked: “Since the age of 16 or in the past 7 years, whichever is shorter, have you illegally used any controlled substance, for example marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants (barbiturates, . . . ), hallucinogenics (LSD, . . .), or prescription drugs?” DOE Exh. 12, Question 24a. To this question, he responded “yes” and further stated in writing that he had used marijuana ten times between 1973 and1974. In response to the question, “In the past 7 years, have you been involved in the illegal purchase, manufacture, trafficking, production, transfer, shipping, receiving, or sale of any narcotic, depressant, stimulant, hallucinogen, or cannabis for your own intended profit or that of another?” the individual responded in the negative. Id., Question 24c.
Finally, at his PSI in 2000, the individual was questioned about substance use, substance by substance. In response to that questioning, he revealed that he had used LSD two or three times around 1970, DOE Exh. 5 (Transcript of PSI) at 9, hashish five or six times in 1972 and 1973, id. at 11-13, and marijuana ten times in 1973 and 1974, though that was probably a low estimate. Id. at 15, 17, 21. He denied using speed, id. at 10, cocaine, id., and peyote, id. at 8. He further denied ever selling drugs. Id. at 21. He was not questioned about his use of barbiturates.
I take note that there is no evidence in the record concerning the individual’s drug use other than the admissions he made in his own statements. Even if I consider his drug use in the light least favorable to the individual, while he may have been substantially involved with illegal drugs at some point in his life, that point has receded far into the distant past. Clearly, there is no present concern that the individual is currently using illegal drugs, and the DOE Office has not raised such a concern. The concern instead lies with the fact that on four occasions the individual has recalled the extent of his illegal drug use differently. The issue before me then is whether the discrepancies in his various recollections represent a deliberate attempt by the individual to misrepresent, falsify or omit significant information from the DOE Office. The individual has not challenged the fact that there are discrepancies among the facts he has reported at different times regarding his illegal drug use. I must consider, however, whether the discrepant information is significant and whether his misrepresentations or omissions were in fact deliberate, before I can determine whether his behavior raises significant security concerns.
It is important to note at the outset that this criterion does not apply to all misstatements and omissions, but only to those that are deliberate and involve significant information. Personnel Security Hearing, Case No. VSO-0041, 25 DOE ¶ 82,775 at 85,665 (1995). From my current perspective, I find that the information that the DOE Office claims the individual has falsified, misrepresented, or omitted is not significant. I reach this conclusion because the information at stake is not only chronologically old but also of little predictive value of either the present or the future. Ignoring the individual’s variations in recalling his drug use– and those variations are admittedly broad– his most recent reported use was in 1975, 25 years before the institution of this proceeding. Moreover, in 1975, the individual was 20 years old. He has freely admitted that he used drugs during his youth. In contrast, he strongly denies having used any illegal drugs since then. DOE Exh. 5 at 27-28. In addition, there is simply no evidence before me that the individual has engaged in illegal drug use in the intervening quarter century. Under these circumstances, I find that information about the individual’s former drug use sheds little if any light on whether he currently has any involvement with illegal substances that might raise a security concern. Because the information neither reflects a current security concern nor predicts a potential future security concern, it is not “significant information” for the purposes of Criterion F. See 10 C.F.R. § 710.8(f) (concerning whether the individual “deliberately misrepresented, falsified, or omitted significant information”).
Even if I found that the information the individual has provided concerning his illegal drug use were significant, I would nevertheless not characterize his falsifications, misrepresentations or omissions in this regard as deliberate. The first of the individual’s four reports of illegal drug use took place in 1995, at least 20 years after his last reported use, and the latest of the four occurred five years after that. It is not surprising to me that an individual’s recollection of a series of non-catastrophic, not particularly memorable events could lose detail over such periods of time. Many of the discrepancies are minor, and may be accounted for by the variation in the degree of detail requested (compare the QNSP’s Question 24a with oral questioning about each individual type of drug in the PSI), or in the degree of detail the individual provided in his responses (compare his using the same period of usage for all drugs listed in his Personal History Statement with his attempts to recall discrete dates of usage for each of the drugs in his Pre-Polygraph Examination).
On the other hand, not all of the discrepancies are minor. For example, in his 1995 reports, the individual stated he used marijuana “many” times, and “probably less than 1000 times,” while at his 2000 PSI he recalled using marijuana “ten times,” though he admitted that was probably a low estimate. In addition, in his 1995 reports, he admitted to having used amphetamines, cocaine, and barbiturates, and to having sold marijuana, all in very limited amounts, while at the 2000 PSI he denied using any of those drugs and denied ever selling marijuana. Although these are serious discrepancies, I do not believe that they represent per se evidence of deliberate misrepresentation, falsification or omission. As mentioned above, the passage of significant time may diminish recollection of details, and as details of using cocaine, for example, once or twice at the age of eighteen, DOE Exh. 10 at 3, 8, fade, so could recollection of having used it at all. At the hearing, the individual testified that his memory of using drugs in his youth is now vague, but that he never intended to deceive the DOE Office with his responses:
I remember doing drugs when I was a kid, and I remember doing– it was either LSD or mescaline, or the names, they fail me now because it was so long ago. I know that I did something and I know that I did it once or twice or three times. It was a part of my life that’s very vague. . . .
A lot of that back then is a blur as to exactly what happened and who did what. I was around a lot of people, like I said, that did a lot of drugs, and I saw it and I was part of some of it.
As far as the discrepancies in the numbers and the dates and the type of drugs that I did, for the most part, I just don’t remember.
When I answered questions . . . during the lie detector test, that was the first time I’d ever taken a lie detector test, and the big thing amongst the guys who had been hired . . . was that, “Whatever you do, don’t minimize the answer if they ask you about drugs. If you feel nervous, give them a big answer.”
So that’s basically how I answered the lie detector test. If they asked me how many times I smoked pot, you get nervous, and I said– I don’t know– I don’t know what I said. It’s written down on the paper. . .
I knew that when I had [my PSI] and I had filled out my [QNSP], I knew that, you know, you guys would go back and check all this other history, so it really didn’t bother me that maybe I wasn’t getting things exactly straight, because I knew they’d get straight sooner or later. . . . I knew at some point that it would be narrowed down to [I] did drugs 30 years ago, [I’m not] trying to deceive anybody, [I’m] just trying to get it straight and let people know [I] did it, and that’s it, I haven’t done it since.
Tr. at 40-42. This was clearly a part of his life that he was trying to put behind him: “My drug usage was long ago, during what seemed to me now as another life.” DOE Exh. 10 at 3 (written response on Personal History Statement to question asking why he used illegal substances).
The DOE Counsel also asked the individual to explain specifically why he denied selling marijuana and using speed and cocaine during the PSI even though he had admitted them on his 1995 reports. Through extensive questioning, Tr. at 45-67, the individual maintained that he gave discrepant information in different contexts. He stated he gave very broad responses before his polygraph, based on the advice he was given. He denied certain activities during the PSI that he had admitted to five years earlier, because at the time of the PSI he no longer recalled having engaged in those activities. He stated at the hearing that he would now admit to those same activities, because the hearing process had reacquainted him with his 1995 reports. For example, with respect to the individual’s discrepant answers about selling marijuana, he explained that at the time of the Pre- Polygraph Examination, he recalled “as a kid being at parties and people would ask each other . . . ?Do you have a joint for sale?’ and maybe I sold one for a dollar . . . but that was my reaction [to admit to selling marijuana], because I remembered those incidents.” Tr. at 46. At the time of the PSI, however, “I did not remember at that point having sold drugs.” Tr. at 55.
Although it is less than satisfying to realize that the information the individual reported to the DOE Office may have been inaccurate and certainly was less than complete, I cannot conclude, given the evidence before me and my assessment of the individual’s credibility, that he deliberately intended to falsify, misrepresent or omit information, let alone significant information, when he provided information on his QNSP and during his PSI. I have difficulty ascribing such deliberate intent to an individual who had not only previously admitted illegally using drugs, but who also assumed that the DOE Office would be obtaining and reviewing those earlier admissions. Consequently, it is my opinion that the individual has resolved the DOE Office’s security concern under Criterion F.
B. Criterion H: Bipolar I Disorder
The derogatory information on which the DOE Office has relied in formulating its Criterion H concern is the diagnosis by a DOE consultant psychiatrist that the individual “has Bipolar Disorder I, which has caused or may cause a defect in judgment or reliability.” I have reviewed the evidence presented in this proceeding and have, with the assistance of the DOE Psychiatrist, reached the conclusion that the individual does not suffer from bipolar disorder.
The path that led to the diagnosis of bipolar disorder in this case was a highly unusual one. The individual maintains that while he was at home in 1994, on shore leave from the Navy, his wife encouraged him to talk to medical personnel about having what she believed was too much energy, difficulty sleeping, and an excessive sex drive. Tr. at 81-84. In an effort to “keep the peace” with his wife, Tr. at 81, he saw a Navy doctor, and explained his wife’s observations to him in her terms. DOE Exh. 5 (PSI Tr.) at 30, 31. He did not think there was anything wrong with him. Tr. at 83. The individual was placed on lithium for a trial period, and ultimately diagnosed with bipolar disorder. He took lithium from 1994 to 1999, when he separated from his wife and moved across the country. Tr. at 72-73. He decided on his own to stop taking lithium in 1999, and no longer takes it. He reached that decision over time, and after at least two medical doctors told him he did not seem to have the disorder with which he had been diagnosed. PSI Tr. at 33, 45. What makes this case unusual is that, at the time of the hearing, there was no contemporaneous evidence in the record, nor in the documents the DOE Psychiatrist reviewed before making his diagnosis, that the individual had ever suffered any Manic Episode or Major Depressive Episode, both of which are necessary precursors of such a diagnosis. While the DOE Psychiatrist relied on the reports of other doctors who had seen and treated the individual, he clearly expressed his belief that records of such episodes would be helpful. DOE Exh. 6 (DOE Psychiatrist’s Report) at 6 n.9.
At the hearing, two psychiatrists testified that they had evaluated the individual. Each disagreed with the diagnosis of bipolar disorder for the individual. Tr. at 108, 146-47. Under questioning by the DOE Psychiatrist, it was revealed that neither had had access to the same records that the DOE Psychiatrist had, but rather formed their opinions from the information they had solicited from the individual, and in at least one instance, his ex-wife. Tr. at 102. The crux of the evidence that the DOE Psychiatrist relied on in making his diagnosis “by history,” that is, by evaluating prior behavior rather than by observing the behavior itself, was a 1996 psychiatric evaluation performed by a Veterans Administration psychologist. DOE Exh. 11. However, as the hearing progressed, it became clear that the Veterans Administration evaluation on which the DOE Psychiatrist relied was itself a diagnosis by history. Tr. at 90, 112. In addition, the DOE Psychiatrist also stated that psychologists are not as familiar with bipolar disorder as psychiatrists, so he does not give as much weight to that evaluation as he would had it been made by a psychiatrist. Tr. at 189. The DOE Psychiatrist again expressed his concern that he lacked records to support his diagnosis fully: “Of course, the real shame is that we don’t have your Navy medical records, which, you know, if I had that as information, that would be much more valuable than what you told [the VA psychologist in 1996], but in the absence of that, the data I used is the data that I got from your VA records.” Tr. at 94.
In the absence of any contemporaneous record of manic or depressive episodes, the DOE Psychiatrist hoped that the testimony of the ex-wife would reveal some support for the diagnoses. Instead, the ex-wife testified that at one time she had had concerns about him and had encouraged him to seek professional help, Tr. at 165, but denied that she observed mood swings, excess sexual drive, or racing thoughts. Tr. at 170-71. I note that this testimony coincides with the information she provided to the psychiatrist who interviewed her. Tr. at 102-03. After hearing the ex-wife’s testimony, the DOE Psychiatrist stated that “[i]f I was asked the Criterion H question, . . ., I have to answer that based on a reasonable degree of medical certainty, 95 percent certain, so I would not answer that question yes based on the information I have right now.” Tr. at 209.
At the end of the hearing, the parties agreed to work together to obtain a copy of the individual’s Navy medical records, so that the DOE Psychiatrist could review them in order to reach a medical opinion about the individual based on a “reasonable degree of medical certainty.” Tr. at 209. In the report he produced after reviewing the individual’s Navy medical records, the DOE Psychiatrist explained his purpose: “The reason I requested the Navy medical records was because of the uncertainty raised at the subject’s Administrative Review Hearing . . ., mainly based on the sworn testimony of his wife that she had never seen any evidence of him having Bipolar Disorder and that she lived with him all throughout the period in which he was supposed to have had it.” Supplemental Report of DOE Psychiatrist at 1. The DOE Psychiatrist observed that there is absolutely no evidence in the extensive medical records, other than the individual’s self-report of “textbook” symptoms, that he exhibited any signs of bipolar disorder. “Appreciate that all during the time that the subject was supposedly having Bipolar Disorder, he was living in a virtual fishbowl on active duty as a Naval . . . Officer.” Id. at 9. The DOE Psychiatrist also reported that in the last 20 of his 30 years of clinical psychiatry practice, he has treated (or directed the treatment) of “well over a thousand patients with Bipolar Disorder,” and has “never seen anyone have Bipolar Disorder in which they supposedly had several manic episodes and their spouse and supervisor (commanding officer) would have no knowledge of this. It is simply not credulous.” Id. at 8 (emphasis in original). The DOE Psychiatrist concluded that there were only two possible explanations for this case, and declined to render an opinion even as to which was more probable: either the individual actually has bipolar disorder, a diagnosis based entirely on self-report, or the individual fabricated the symptoms of bipolar disorder in order to get discharged from the Navy with a service-connected disability. Id. at 9. The DOE Psychiatrist contended that neither of these possibilities was favorable to the individual. Id.
While I can accept the DOE Psychiatrist’s logical stance, I cannot rely on it to resolve the legal issues raised in this case. The issue before me at this juncture is whether the facts in evidence raise a “question as to the individual’s eligibility for access authorization” within the ambit of Criterion H. 10 C.F.R. § 710.7(b). The record, considered in its entirety, contains no objective evidence of the medical conditions that are the precursors to bipolar disorder. The DOE Psychiatrist has stated that he has never seen a case of bipolar disorder in which, as is the case here, the underlying manic and depressive episodes went completely unobserved by spouses and supervisors. In addition, the DOE Psychiatrist is unwilling to overrule his retraction of the medical certainty of his original diagnosis, which leaves this individual without a current or prior diagnosis of bipolar disorder. Consequently, it is my opinion that the individual has resolved the DOE Office’s security concern under Criterion H.
Finally, with respect to the other logical possibility that the DOE Psychiatrist raised– that the individual fabricated textbook symptoms of bipolar disorder in order to secure a disability-related discharge from the Navy– it is outside the scope of this proceeding. Concerns of this type would most likely fall within Criterion L of the security regulations: “unusual conduct or . . . circumstances which tend to show that the individual is not honest, reliable, or trustworthy.” 10 C.F.R. § 710.8(l). The DOE Office did not raise any concern with regard to this matter in its Notification Letter, and did not develop this concern at the hearing. Should the DOE Office decide that the DOE Psychiatrist’s speculation in his supplemental report constitutes derogatory information, it should pursue this matter under the applicable regulations. See 10 C.F.R. § 710.9.
IV. CONCLUSION
For the reasons set forth above, I conclude that the individual has resolved the security concerns raised under Criteria F and H. The individual has demonstrated that granting his security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, it is my opinion that the individual's access authorization should be granted.
William M. Schwartz
Hearing Officer
Office of Hearings and AppealsDate: November 23, 2001