PSH-12-0013

* 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 Hearing and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: February 22, 2012 ) Case No.: PSH-12-0013
)
______________________________________ )
Issued: June 7, 2012
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Hearing Officer Decision
____________________
William M. Schwartz, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXXX (the individual) to hold an
access authorization (also called a security clearance) 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 security clearance should not be restored.2
I. BACKGROUND
The individual works for a Department of Energy (DOE) contractor and holds a DOE access
authorization, now in suspension. In 2007 through 2009, the individual provided inconsistent
information to the Local Security Office (LSO) concerning his use of alcohol and failed to report an
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to classified
matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5.
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.
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arrest that occurred in 2003. Because the LSO could not resolve these discrepancies and the
reporting failure to its satisfaction, it determined that derogatory information existed that cast into
doubt the individual’s eligibility for access authorization. The LSO informed the individual of this
determination in a Notification Letter that set forth the DOE’s security concerns and the reasons for
those concerns. Exhibit 1. The Notification Letter also 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 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 ten exhibits into the record of this
proceeding and presented no witnesses at the hearing. The individual submitted no exhibits but
presented the testimony of five witnesses in addition to his own testimony.
II. DEROGATORY INFORMATION AND THE ASSOCIATED SECURITY CONCERNS
The individual was arrested for Battery, Disorderly Conduct, Resisting Arrest, and Assault on
February 23, 2003. He did not report the arrest to his employer for one to two months, as he was
afraid that he would lose his security clearance and his job. Exhibit 9 (December 9, 2008, Personnel
Security Interview (PSI)) at 28-29. According to the individual, when he did attempt to report it, a
staff member of his employer’s badging office informed him that he did not have to report an arrest
unless he was convicted of the charge. Id. at 27. In completing a Questionnaire for National
Security Positions (QNSP) in 2007, he indicated that he had never been “charged with or convicted
of any offense(s) related to alcohol or drugs.” Exhibit 7 at § 23(d). The individual offered a
number of reasons for making that statement. In August of 2008, he stated that he had forgotten
about the 2003 arrest, as the charges had been dropped. Exhibit 10 (August 7, 2008, PSI) at 7-8. In
December 2008, however, he stated that he misunderstood the question on the QNSP and thought he
was to list only convictions. Exhibit 9 at 69, 73. In the same interview, he also stated that perhaps
he no longer recalled the arrest, id. at 72, and that he was clearly worried about losing his clearance.
Id. at 75. Moreover, despite his statements on two occasions in 2008 that he had forgotten about
the 2003 arrest, testimony at an administrative review hearing conducted in 2009 indicated that he
then maintained that he had never stated that he had forgotten about the arrest. Exhibit 5 (Transcript
of July 1, 2009, Hearing) at 101.
Additional inconsistent statements concerned the individual’s use of alcohol. According to a 2007
note written by an Office of Personnel Management investigator, the individual reported to the
investigator that although he drinks alcohol roughly six times a year, he never drinks to the point of
intoxication, which he defined as not being in control of his actions. Exhibit 6 at Item 19. During
one Personnel Security Interview (PSI) in 2008, however, he stated that he had been intoxicated
once or twice a year, Exhibit 10 at 29, and during a second interview four months later he stated both
(a) that he did not recall claiming that he never became intoxicated, and (b) that he had not been
honest with the investigator. Exhibit 9 at 24-26, 92-93.
The individual’s inconsistent statements raise national security concerns under paragraph (f) of the
criteria for eligibility for access to classified matter or special nuclear material set forth at 10 C.F.R.
§ 710.8. Criterion F concerns arise when the LSO learns that the individual “[d]eliberately
misrepresented, falsified, or omitted significant information from” a QNSP, a personnel interview, in
statements made in response to an official inquiry regarding a determination of eligibility for DOE
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access authorization, or during administrative review proceedings. 10 C.F.R. § 710.8(f). As support
for invoking this criterion, the Notification Letter cites the occasions on which the individual made
statements that, being logically inconsistent, cannot all be truthful.
This derogatory information adequately justifies the DOE’s invocation of Criterion F and raises
significant security concerns. Conduct involving questionable judgment, lack of candor, dishonesty,
or unwillingness to comply with rules and regulations can raise questions about an individual’s
reliability, trustworthiness and ability to protect classified information. Of special interest is any
failure to provide truthful and candid answers during the security clearance process or any other
failure to cooperate with the security clearance process. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19, 2005)
(Adjudicative Guidelines), at Guideline E.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant
facts and circumstances, and make a “common-sense judgment . . . after consideration of all relevant
information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable and
unfavorable, that has a bearing on the question of whether granting or restoring the individual’s
security clearance would compromise national security concerns. Specifically, the regulations
compel me to consider the nature, extent, and seriousness of the individual’s conduct; the
circumstances surrounding the conduct; the frequency and recency of the conduct; 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 likelihood of continuation or recurrence of
the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c).
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.” 10 C.F.R. § 710.27(d). See
Personnel Security Hearing, Case No. VSO-0013 (1995) (affirmed by OSA, 1996), and cases cited
therein. 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).
IV. FINDINGS OF FACT AND ANALYSIS
I find that the individual has not mitigated the security concerns set forth in the Notification Letter.
The first two concerns the LSO raises in the Notification Letter relate to an earlier administrative
review hearing conducted in July 2009. The LSO alleges first that the individual denied at the 2009
hearing ever stating that he had forgotten about his 2003 arrest. Exhibit 1 at Paragraph B. The LSO
contends that this statement contradicted the individual’s statement during an August 2008 PSI that
he had forgotten about his 2003 arrest at the time when he was completing his QNSP in 2007. Id. I
have reviewed the transcript of the 2009 hearing and find that the individual did not in fact deny at
the hearing that he had ever stated he had forgotten about his 2003 arrest. It was rather his attorney
who made that representation to the Hearing Officer, after consultation with the individual. The
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attorney declined the DOE Counsel’s suggestion to have the individual testify on the matter. Exhibit
5 (Transcript of 2009 Hearing) at 101, 102. While the individual’s attorney was not under oath, he
made this representation on behalf of his client, and the individual himself did not attempt to correct
the statement. Despite his contentions at the hearing I held in the present proceeding, I am not
convinced that the individual has been entirely straightforward in his representations on this matter,
and find that he has not mitigated this concern.
The second concern relates to the Hearing Officer’s unfavorable decision issued after the 2009
hearing. Exhibit 1 at Paragraph A. Specifically, the Hearing Officer determined that the individual
had not been completely honest throughout the investigative and administrative review processes.
Exhibit 4 at 5. In reaching this conclusion, the Hearing Officer assessed the individual’s demeanor,
relied on the individual’s testimony, and considered the attorney’s statement discussed above as one
factor. I am not convinced that the Hearing Officer in the 2009 hearing erred in making his
credibility determination, and therefore find that the individual has not mitigated this concern.
I find, moreover, that the individual has not mitigated the remaining concerns set forth in the
Notification Letter. The supporting facts for each of these concerns are discrepant statements the
individual provided to the LSO in three factual areas: his failure to report his 2003 arrest in a timely
manner, his failure to list his 2003 arrest on his 2007 QNSP, and his discrepant statements regarding
his history of alcohol intoxication. The specific supporting facts relied upon in the Notification
Letter are set out in Section II above. At the hearing, he offered clarifications of his previous
explanations and, in some cases, new explanations, some of which themselves are inconsistent with
his earlier statements. After considering all of the evidence before me, I am not convinced that the
individual did not intentionally falsify information he provided to the LSO.
With respect to his failure to report his arrest in a timely manner, the individual’s testimony at the
hearing is incompatible with information he had previously supplied the LSO. Although the
individual admitted at the December 2008 PSI that he had delayed reporting the 2003 arrest for
about a month because he feared he would lose his job, at the hearing he testified that he had not
delayed making the report more than a day or two. Id. at 93; Exhibit 9 at 26-29. Because his
employer’s badging office, at which he claims he presented himself to report his arrest, did not
record his appearance, he can produce no evidence of the date he went to that facility, let alone
whether he ever in fact did so. Consequently, this issue cannot be resolved. Instead, I am left
questioning why the individual has provided inconsistent information regarding this matter, and am
confident only in that his reporting of facts is not reliable.
I now turn to the three different explanations the individual has provided to explain his failure to list
his 2003 arrest on his 2007 QNSP: forgetting he was arrested, receiving incorrect advice about his
reporting obligations, and fearing that reporting the incident would result in the loss of his security
clearance and ultimately his employment. As discussed above, at an August 2008 PSI, the
individual told the LSO interviewer that he had forgotten he had been arrested at the time he was
completing the QNSP, some four years later. At a second PSI four months later, the individual
stated that perhaps he had forgotten the arrest, but also offered two other reasons. The first was that,
when he did report his arrest to the badging office in 2003, a female staff member at that office told
him that he should not report an arrest unless he was convicted of the charge. Exhibit 9 at 26-29.
Because the charges were dropped in this arrest, he understood from her that he need not report it to
security or on any future QNSP. Tr. at 95. Whether correctly or not, the individual relied on her
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advice, and did not report his arrest on the QNSP.3 The other reason the individual offered for not
listing his arrest on the QNSP was that he was afraid that reporting it would cause him to lose his
security clearance and his job. Exhibit 9 at 70, 75.
At the hearing, the individual asserted that he both relied on incorrect advice and feared for his job
security when he did not list his 2003 arrest. Id. at 101. Even if I accept his assertion that these two
explanations are not mutually incompatible, I cannot align these two explanations with his third
explanation: that he had forgotten about the arrest. I cannot accept that one can forget a fact, yet rely
on incorrect advice about reporting it, nor can I accept that one can forget a fact and at the same time
fear reporting it. Regardless which of these explanations truly explain his failure to report his arrest
on his QNSP, he has provided all of them to the LSO, and thus given both truthful and untruthful
accountings for his behavior. His lack of candor makes it difficult to ascertain the truth of his
statements and renders him unreliable, at least in his dealings with the LSO. See Personnel Security
Hearing, Case No. TSO-1091 (2011); Personnel Security Hearing, Case No. TSO-0212 (2007).
Finally, I face a similar unresolved concern related to the individual’s discrepant statements about
his history of alcohol intoxication. The OPM investigator’s notes of his 2007 interview with the
individual indicate that he denied ever being intoxicated, while at both 2008 PSIs, he admitted to
infrequent intoxication. At the hearing, the individual sought to explain the inconsistency by stating
that he had different definitions of “intoxication” in mind in 2007 and 2008: the OPM investigator’s
notes state that the “subject defined intoxication as not being in control of one’s actions,” Tr. at 107,
Exhibit 6 at 2, but, as a holder of a commercial driver’s license at the time of the LSO interviews, the
individual maintained he would have considered any breathalyzer reading above .04 to constitute
intoxication. Tr. at 108-10. While that explanation may in fact be true, it was not the explanation he
offered when questioned about the inconsistency at the December 2008 PSI. Instead, he stated at
that time that he had not been honest with the OPM. Exhibit 9 at 92-93. This admission alone
demonstrates that the individual intentionally misrepresented the truth during an “official inquiry
regarding a determination of eligibility for DOE access authorization.” Criterion F.
Stepping back from the details presented in this case, and applying common sense, I reach a
conclusion that there are simply too many unresolved questions about how and why the individual
provided the information he did regarding his access authorization. Despite the individual’s
reputation among his peers for trustworthiness and reliability, Tr. at 12, 14 ,15, 28-29, 37, 42, 49-50,
and despite his many protestations at hearing that he never intended to mislead security, id. at 70, 88,
107, 117, I am left with doubts regarding the individual’s candor, at least in his interactions with the
LSO. Because he has not resolved these doubts, the individual has not sufficiently mitigated the
Criterion F concerns raised by the LSO regarding deliberate falsification of the information he
provided to the LSO on various occasions.
3 A number of the witnesses testified that employees generally rely on the advice they receive from the badging office.
Id. at 53, 62-65.
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VI. CONCLUSION
For the reasons set forth above, I conclude that the individual has not resolved the DOE’s security
concerns under Criterion F of 10 C.F.R. Part 708, and therefore has not demonstrated that restoring
his access authorization would not endanger the common defense and would be clearly consistent
with the national interest. Accordingly, I find that the individual’s security clearance should not be
restored. The individual may seek review of this Decision by an Appeal Panel under the procedures
set forth at 10 C.F.R. § 710.28.
William M. Schwartz
Hearing Officer
Office of Hearings and Appeals
Date: June 7, 2012