PSH-12-0016

* 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: February 28, 2012 )
) Case No.: PSH-12-0016
)
__________________________________________)
Issued: June 12, 2012
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Hearing Officer Decision
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Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXXX XXXX (hereinafter referred to as “the
Individual”) to maintain a security clearance under the Department of Energy’s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria and Procedures
for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” As
discussed below, after carefully considering the record before me in light of the relevant
regulations, I have determined that the Individual’s security clearance should not be restored.
I. BACKGROUND
The administrative review proceeding began with the issuance of a Notification Letter to the
Individual. See 10 C.F.R. § 710.21. The letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. Specifically, the Local Security Office (LSO) stated that the Individual had: (1) been
diagnosed by a psychologist as suffering from Impulse-Control Disorder, an illness or mental
condition of a nature which causes, or may cause, a significant defect in judgment or reliability;
and (2) engaged in unusual conduct which brought his honesty, trustworthiness, and reliability
into question by viewing pornography at work, providing false information to investigators, and
inappropriately charging time spent viewing pornography to his employer.1
1 See, 10 C.F.R. § 710.8(h) and (l).
2
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in
this matter on June 1, 2012.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his spouse, his supervisor, his Employee Assistance Program (EAP) Counselor (the
Counselor), his prayer partner, his treating Counselor (the Treating Counselor) and a DOE
consultant psychologist (the Psychologist). See Transcript of Hearing, Case No. PSH-12-0016
(hereinafter cited as “Tr.”). The LSO submitted 8 exhibits, marked as Exhibits 1 through 8,
while the Individual submitted 3 exhibits, marked as Exhibit A through C.
II. FINDINGS OF FACT
The present proceeding involves an Individual who was caught viewing pornography by a
security monitor at a desktop computer in his cubical at a secure DOE facility in August 2011.
Exhibit 3 at 1. When questioned by his employer about his viewing of pornography at work,
during work hours, the Individual initially claimed that he had inadvertently stumbled upon a
sexually explicit web site.2 Exhibit 8 at 28. The Individual subsequently admitted that he had
been purposely viewing pornography during working hours for an estimated 30 to 40 hours from
February 2011 to August 2011. Exhibit 8 at 11, 30. The Individual further admitted that he had
been billing time for work when, in fact, he had been viewing pornography. Id.
On November 30, 2011, the LSO conducted a Personnel Security Interview (PSI) of the
Individual.3 During this PSI, the Individual admitted that he had been having a problem with
pornography for four years. Exhibit 8 at 13. The Individual acknowledged that he had felt
compelled to view pornography while at work. Id. at 25.
At the request of the LSO, the Individual was evaluated by the Psychologist on January 6, 2012.
The Psychologist issued a report of his evaluation on January 7, 2012.4 The Psychologist found
that the Individual suffers from a sexual addiction and meets the criteria for Impulse-Control
Disorder NOS set forth in the Diagnostic and Statistical Manual of Mental Disorders-Fourth
Edition, Text Revision (DSM-IV-TR). Exhibit 6 at 4-5. The Psychologist opined that the
Individual’s Impulse-Control Disorder is a mental condition that could significantly affect his
judgment or reliability. Id. at 5. The Psychologist further found that the Individual did not
show adequate evidence of rehabilitation or reformation from his Impulse-Control disorder,
noting that, at the time of the Individual’s examination, the Individual had only abstained from
viewing pornography for four months. Id. at 5. The Psychologist recommended that in order to
establish reformation or rehabilitation, the Individual needed to abstain from viewing
2 The Individual subsequently admitted that he had attempted to deceive his employer about his intent to view
pornography because he was concerned about losing his job. Exhibit 8 at 29.
3 A copy of the transcript of the November 30, 2011, PSI appears in the record as Exhibit 8.
4 A copy of the January 7, 2012, Psychologist’s report appears in the record as Exhibit 6.
3
pornography for at least one year, and attend one-on-one counseling on a weekly basis for a
period of at least several months. Id.
III. 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 a decision 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 opinion: 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.
IV. ANALYSIS
The LSO has invoked Criterion H citing the Psychologist’s opinion that the Individual met the
DSM-IV criteria for Impulse-Control Disorder NOS, and has not shown reformation or
rehabilitation. It is well settled that such emotional, mental, and personality conditions can
impair judgment, reliability, or trustworthiness. Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information issued by the Assistant to the
President for National Security Affairs, The White House (December 29, 2005) (Adjudicative
Guidelines) at ¶ 27. The LSO has also invoked Criterion L, since the Individual’s sexual
addiction caused him to engage in professionally inappropriate conduct (i.e. viewing
pornography in his work cubical), act in a dishonest manner (by attempting to deceive his
employer), and to violate his employer’s ethical guidelines (by indicating on his time sheet that
he was performing chargeable work, when he was actually viewing pornography).
The Adjudicative Guidelines provide in pertinent part: “Sexual behavior that . . . indicates a
personality or emotional disorder, reflects lack of judgment or discretion, or which may subject
the individual to undue influence or coercion, exploitation, or duress can raise questions about an
individual's reliability, trustworthiness and ability to protect classified information.”
Adjudicative Guidelines at ¶ 12. The Adjudicative Guidelines specifically state that “a pattern of
compulsive, self-destructive, or high-risk sexual behavior that the person is unable to stop …”;
“sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress;”
and “sexual behavior of a public nature and/or that which reflects lack of discretion or
judgment,” are among those “conditions that could raise a security concern and may be
disqualifying.” Id. at ¶ 13. It is similarly well settled that “conduct involving questionable
judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can
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raise questions about an individual's reliability, trustworthiness and ability to protect classified
information.” Id. at ¶ 14.
In the present case, I find that the Individual’s viewing of pornography at his work cubicle and
his ensuing dishonest conduct are symptomatic of his Impulse-Control disorder. Tr. at 138.
Accordingly, the sole question before me is whether the Individual has been sufficiently
reformed or rehabilitated from his Impulse-Control disorder to resolve the security concerns
raised by the derogatory information discussed above.
The Individual candidly admits that he suffers from a sexual addiction to pornography and that
he was properly diagnosed with Impulse-Control Disorder NOS. The Individual has testified
that he has not viewed pornography since August 2011 (approximately nine months prior to the
hearing), obtained counseling from the Treating Counselor, and has been working with a pastor
at his church in order to address his sexual addiction.5
At the hearing, the Treating Counselor, a licensed professional clinical counselor, testified on the
Individual’s behalf. Tr. at 41. The Treating Counselor testified that she had first met with the
Individual on February 16, 2012, less than three months prior to the hearing. Id. at 43. She has
been seeing him on a bi-weekly basis since February, for a total of six or seven sessions. Id. at
43, 55. The Treating Counselor agreed that the Individual was properly diagnosed with Impulse-
Control Disorder NOS. Id. at 45, 48. She further testified that an Impulse-Control disorder has
an effect upon an individual’s cognitive function and judgment. Id. at 45-46. The Treating
Counselor admitted that she did not have any scientific basis upon which to judge the
Individual’s likelihood of relapse, but believed that the consequences suffered by the Individual
as a result of his condition were sufficiently painful to prevent a relapse. Id. at 56-57. She noted
that the Individual is “fully involved” and “participative” in his therapy process, and has really
worked hard. Id. at 62-63. She testified that the Individual now has a sense of control over his
urges. Id. at 52. The Treating Counselor described the Individual’s prognosis as “very positive.”
Id. at 62. However, the Treating Counselor admitted that the Individual needs approximately a
year’s treatment for his condition to “stabilize,” i.e. until February 2013. Id. at 55-56.
The Psychologist was present for the testimony of each of the other witnesses during the hearing.
After the other witnesses had concluded their testimony, the Psychologist testified. The
Psychologist testified that he diagnosed the Individual with Impulse-Control Disorder NOS after
concluding that the Individual has a sexual addiction. Tr. at 133. The Psychologist explained
that the Impulse-Control Disorder NOS is a broad category covering a number of situations in
which a “person has a difficulty restraining themselves from acting on particular impulses that
does not fit any other psychological condition.” Id. at 134. A sexual addiction is among those
situations. Id. The Psychologist described the Individual’s sexual addiction as “extremely
strong” and noted that sexual addictions are among the hardest to treat. Id. at 137, 141. The
5 In addition, the Individual is being monitored on a tri-weekly basis by a licensed professional clinical counselor
through his EAP. The EAP Counselor testified at the hearing that she meets with the Individual primarily for the
purpose of monitoring the progress of his therapy. Tr. at 12. She testified that she is not treating the Individual’s
Impulse-Control disorder. Id. at 12-13, 19. Instead, she referred the Individual to the treating counselor for
treatment of his Impulse-Control disorder because she believed the treating counselor to be more experienced in
treating Impulse-Control disorders. Id. at 11-12, 18. The EAP Counselor testified that the Individual appeared to be
making progress in his therapy. Id. at 16.
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Psychologist testified that the Individual has not: (1) abstained from using pornography for a full
year, (2) received weekly counseling, or (3) addressed, in his therapy, the underlying issues
which lead to his sexual addiction. Id. at 140. Moreover, the Psychologist opined that the
therapy the Individual was receiving was inadequate because it was not addressing the
underlying causes of the Individual’s behavior. Id. at 143-146. The Psychologist further
testified that the Individual is: “a moral man with . . . holes in his conscience, that can allow him
to behave in ways that he basically doesn't like, but he still allows himself to do and that is
counter to his own values. And one of those ways, apart from the pornography, is to lie, to hold
things in private that he's ashamed of.” Id. at 138. The Psychologist testified that the Individual
would, at a minimum, need to abstain from using pornography for at least a full year to be
considered reformed or rehabilitated, but he would need to abstain from using pornography for at
least two years before “we can be fairly highly confident that he may have conquered this
problem.” Id. at 147-149. Since the Individual has only abstained from using pornography for
ten months, he has not yet shown that he is reformed or rehabilitated from his Impulse-Control
Disorder NOS.
I find that the Psychologist has convincingly testified that the Individual has not yet been
sufficiently reformed or rehabilitated from his Impulse–Control Disorder. The Psychologist’s
testimony is supported by the Treating Counselor’s testimony that the Individual would need a
year of treatment before he was stabilized (and therefore would not be stabilized until February
2013). Based on all the evidence before me, I find that the Individual has not resolved the
security concerns arising from his Impulse-Control Disorder and its associated behaviors.
Accordingly, I find that the Individual has not mitigated the security concerns raised under
Criterion H and L.
V. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H and L. I
find that unmitigated security concerns remain under both of these criteria. Accordingly, the
Individual has not demonstrated that restoring his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, 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.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: June 12, 2012