PSH-12-0005

* 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
XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: January 5, 2012 ) Case No.: PSH-12-0005
)
___________________________________ )
Issued: May 17, 2012
_______________
Decision and Order
_______________
Janet R. H. Fishman, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXX (the Individual) for 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/ For the reasons set forth below, I conclude that the Individual’s access authorization
should be restored.
I. Procedural History
The Individual is employed by a Department of Energy (DOE) contractor. Based upon the
receipt of derogatory information, the Local Security Office (LSO) called the Individual in for a
Personnel Security Interview (PSI). DOE Ex. 12. After the PSI, the LSO informed the
Individual that derogatory information created a substantial doubt concerning his eligibility for
access authorization. Notification Letter dated December 22, 2011; DOE Ex. 1; 10 C.F.R.
§ 710.8(l) (Criterion L).
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt concerning his eligibility for access
1/ An access authorization is an administrative determination that an individual is eligible for access to
classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will also be referred
to in this Decision as a security clearance.
- 2 -
authorization. The Individual requested a hearing on this matter. The LSO forwarded this
request to OHA, and I was appointed the Hearing Officer. The DOE introduced nine exhibits
into the record of this proceeding. The Individual, through his attorney, submitted 21 exhibits
and presented the testimony of four witnesses, in addition to testifying himself.
II. Regulatory Standards
Under Part 710, certain types of information raise concerns about whether an individual is
eligible for access authorization. In considering whether an individual has resolved a security
concern, the Hearing Officer considers various factors, including the nature of the conduct at
issue, how frequently it occurred, how recently it occurred, the absence or presence of
reformation or rehabilitation, and the impact of the foregoing on the relevant security concerns.
10 C.F.R. § 710.7(c). The decision concerning eligibility is a comprehensive, common-sense
judgment based on a consideration of all relevant information, both favorable and unfavorable.
Id. § 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the
grant or restoration of access authorization to the individual would not endanger the common
defense and security and would be clearly consistent with the national interest.” Id. § 710.27(a).
A DOE administrative proceeding under 10 C.F.R. Part 710 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 produce evidence sufficient to convince the
DOE that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” Id. § 710.27(d); see Personnel
Security Hearing, Case No. VSO-0013 (1995), aff’d, OSA, 1995.2/ The regulations further
instruct me to resolve any doubts concerning the individual’s eligibility for access authorization
in favor of the national security. 10 C.F.R. § 710.7(a).
III. Findings of Fact and Analysis
A. Criterion L Concern
Criterion L applies where an individual has engaged in conduct casting doubt on whether he is
“honest, reliable, and trustworthy.” 10 C.F.R. § 710.8(l); see also Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information issued on
December 29, 2005, by The White House (Adjudicative Guidelines) ¶ 19(c) (a history of not
meeting financial obligations); Adjudicative Guidelines ¶ 16(d) (combined information showing
questionable judgment, untrustworthiness, and unwillingness to comply with rules and
regulations).
2/ Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website
located at http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case
number of the decision in the search engine located at http://www.oha.doe.gov/search.htm.
- 3 -
At the time of the Notification Letter, the Individual was overdue on a number of credit accounts,
including his student loans. DOE Ex. 1 at 1. In addition, the Individual had traffic offenses and
related court matters leading to questions about his personal conduct. DOE Ex. 1 at 1-2.
Accordingly, I find that the LSO properly raised a security concern under Criterion L.
B. Possible Mitigation of Criterion L Concerns
1. Unpaid Financial Obligations
The Adjudicative Guidelines list a number of conditions that the Individual could use to mitigate
the concerns raised under Criterion L regarding his financial difficulties. The conditions are:
a) the behavior happened so long ago, was so infrequent, or occurred under such
circumstances that it is unlikely to recur and does not cast doubt on the
individual's current reliability, trustworthiness, or good judgment;
(b) the conditions that resulted in the financial problem were largely beyond the
person's control (e.g. loss of employment, a business downturn, unexpected
medical emergency, or a death, divorce or separation), and the individual acted
responsibly under the circumstances;
(c) the person has received or is receiving counseling for the problem and/or there
are clear indications that the problem is being resolved or is under control;
(d) the individual initiated a good-faith effort to repay overdue creditors or
otherwise resolve debts;
(e) the individual has a reasonable basis to dispute the legitimacy of the past-due
debt which is the cause of the problem and provides documented proof to
substantiate the basis of the dispute or provides evidence of actions to resolve the
issue.
Adjudicative Guidelines ¶ 20 (a)-(e).
The Individual testified that his financial difficulties began after he graduated from college.
Prior to graduation, he was working for the DOE as a student intern. Tr. at 53. When he
graduated, he found a paid position with another company. Tr. at 54. After about six months,
the company could no longer afford to pay him. Tr. at 54. He stated that he did not seek
unemployment benefits, because he did not feel right about doing so. Tr. at 55. He was
unemployed for over one year. Tr. at 54-55. He lived with his family and paid for his day-to-
day expenses by doing odd jobs. Tr. at 54. In March 2011, he was able to get a position as a
student intern with the DOE again, when he registered for his Masters Degree. Tr. at 56. In
December 2011, he was hired in a full-time position with the DOE. Tr. at 57. When he was
hired full-time, the Individual began correcting his financial irregularities.
At the hearing, the Individual testified that, except for his student loans, he has paid all his
outstanding debts in full. Tr. at 59, 60, 62, 63; Ind. Ex. K, H, S, T, U. He did not believe all of
the outstanding debts on the credit report and listed in the Notification Letter were his, but he
paid them after a credit bureau confirmed that they were. Tr. at 59, 83-85. As to the
- 4 -
Individual’s student loans, he testified that he has entered into two payment plans. Tr. at 63-65;
Ind. Ex. J, I. The Individual stated that he did not include one loan in a federal consolidation
with the other student loans, because the state in which he took out the loan had a better payment
program than the federal plan. Tr. at 63. He testified that he is current on both the consolidated
federal plan and the individual state plan. Tr. at 64, 66.
I find that the Individual has mitigated the concerns raised in the Notification Letter. As an
initial matter, the Individual has demonstrated that his financial delinquencies arose as the result
of his lack of employment, rather than a pattern of financial irresponsibility. Moreover, the
Individual began to address his delinquencies as soon as he obtained employment and prior to
the issuance of the Notification Letter. Ind. Ex. H, K, S, T, U. Indeed, there is evidence that the
Individual tried to deal with his delinquent student loans beginning in 2009. DOE Ex. 9 at 96.
Finally, the Individual fulfilled two conditions which can mitigate a concern raised by an
Individual’s financial delinquencies. See, Adjudicative Guidelines ¶ 20(c), (d). The Individual
has been successful in his efforts to resolve his financial irregularities. All his outstanding bills
have been paid, except for his student loans, which have been consolidated into two payment
plans. He is current on both those plans. There is no evidence that the Individual is not current
on his present living expenses. The Individual’s girlfriend testified that he is responsible about
his bills. Tr. at 33. She also testified that the Individual has a budget and “lives within it.” Tr. at
33-34. Therefore, I find that the Individual has mitigated the concerns raised by his financial
difficulties raised in the Notification Letter.
2. Personal Conduct
The Adjudicative Guidelines list a number of conditions that the Individual could use to mitigate
the concerns raised under Criterion L regarding his personal conduct. The conditions relevant to
my decision are:
(d) the individual has acknowledged the behavior and obtained counseling to
change the behavior or taken other positive steps to alleviate the stressors,
circumstances, or factors that caused untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
Adjudicative Guidelines ¶ 17 (d), (e). One of the automobile-related citations mentioned in the
Notification Letter occurred in 2006, when the Individual was approximately 20 years old. That
citation was for a broken headlamp. The other citations occurred in 2011: a March citation for
exceeding the speed limit3/, a July citation for lapsed insurance, and an October citation for the
resulting expired registration. DOE Ex. 1 at 1-2. The Notification Letter also indicates that the
Individual was arrested on a bench warrant for failure to appear in regard to the speeding
violation. DOE Ex. 1 at 2.
3/ The Individual testified that he was exceeding the speed limit by five to six miles per hour. There is
nothing in the record to contradict his statement
- 5 -
With respect to the 2006 traffic citation and related arrest, the Individual testified that he fixed
the headlamp and intended to go to court to challenge the citation, but his hearing date was
during a week when he had college exams. Tr. at 67. Because he missed the court date, he was
arrested on a bench warrant. Tr. at 67-68. With respect to the missed court date for the speeding
citation, the Individual testified that he missed the court date because of the August 2011
kidnapping and murder of his father. Tr. at 75. The Individual testified that “everything got put
on hold for me. You know, like I said, I lost focus of what I was supposed to be doing. I just
took off, and I came back about a month later to start sorting out my business again.” Tr. at 75.
He also presented evidence that he subsequently went to court, paid the speeding citation, and
demonstrated that he had obtained insurance, resulting in the dismissal of the July 2011 and
October 2011 charges. Tr. at 76-77; Ind. Ex. L.
I find that the Individual has mitigated the Criterion L security concerns raised by his personal
conduct. The first offense occurred six years ago when the Individual was 20 years old.
Although he did not deal with the 2011 citations properly at the time, there were extenuating
circumstances--his father’s kidnapping and murder. The Individual testified that his life “got put
on hold” after his father’s murder. Tr. at 75. I found the Individual to be sincere in his
testimony. Also, in addition to his sincere and honest testimony, I found his witnesses to be
sincere when they all testified that he is trustworthy and honest. Tr. at 14, 22, 31, 45. One of his
witnesses stated that the Individual is “one of the most solid [people] he has met.” Tr. at 44.
Based on the hearing testimony and records in this case, I find that the Individual has mitigated
the Criterion L security concerns.
IV. Conclusion
Upon consideration of the entire record in this case, I find that there was sufficient evidence that
raised doubts regarding the Individual’s eligibility for a security clearance under Criterion L of
the Part 710 regulations. I also find that the Individual has presented sufficient information to
resolve those concerns. Therefore, I conclude that restoring the Individual’s 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(a). Consequently, it is my decision that the Individual’s
access authorization should be restored at this time. The parties may seek review of this decision
by an Appeal Panel. 10 C.F.R. § 710.28(b)-(e).
Janet R. H. Fishman
Hearing Officer
Office of Hearings and Appeals
Date: May, 17, 2012