PSH-12-0033

* 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: April 6, 2012 )
) Case No.: PSH-12-0033
)
__________________________________________)
Issued: June 27, 2012
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Hearing Officer Decision
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Steven L. Fine, Hearing Officer:
This decision concerns the eligibility of XXXX X. XXXXXXX (hereinafter referred to as "the
Individual") to maintain 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.” For the reasons set forth below, I conclude that the Individual’s
security clearance should not be granted.
I. BACKGROUND
This case involves an Individual with a record of nine arrests, seven of which involve alcohol. In
addition, the Individual provided a Local Security Office (LSO) with incomplete or inaccurate
information about his criminal activities. Unable to resolve the security concerns raised by this
derogatory information, the LSO initiated administrative review proceedings on March 8, 2012,
by issuing a letter (Notification Letter) advising the Individual that it possessed reliable
information that created a substantial doubt regarding his eligibility to hold a security clearance.
In the Notification Letter, the LSO set forth the derogatory information at issue and advised that
the derogatory information fell within the purview of three potentially disqualifying criteria set
forth in the security regulations at 10 C.F.R. § 710.8, subsections (f), (j) and (l).1
1
Specifically, the Notification Letter alleges that the Individual has:
(1) Deliberately misrepresented, falsified, or omitted significant information from a Personnel
Security Questionnaire, a Questionnaire for Sensitive (or National Security) Positions, a personnel
qualifications statement, a personnel security interview, written or oral statements made in
response to official inquiry on a matter that is relevant to a determination regarding eligibility for
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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 his request to the Office of Hearings
and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter
on April 9, 2012.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his daughter, and a personnel security specialist. See Transcript of Hearing, Case No.
PSH-12-0033 (hereinafter cited as “Tr.”). The LSO submitted 10 exhibits, marked as Exhibits 1
through 10, and the Individual submitted seven exhibits, marked as Exhibits A through G.
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 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 will not endanger the common
defense and security and is 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.
DOE access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.
10 C.F.R. § 710.8(f) (Criterion F);
(2) Been, or is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a
licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse, 10 C.F.R.
§ 710.8(j) (Criterion J); and
(3) 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. Such conduct or
circumstances include, but are not limited to, criminal behavior, a pattern of financial
irresponsibility, conflicting allegiances, or violation of any commitment or promise upon which
DOE previously relied to favorably resolve an issue of access authorization eligibility. 10 C.F.R.
§ 710.8(l) (Criterion L).
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III. FINDINGS OF FACT
The Individual has a longstanding pattern of criminal activity which began in his juvenile years.
Exhibit 2 at 4-8. The Individual has been arrested on no fewer than nine occasions as an adult.
Seven of these nine charges have a common denominator: they have been alcohol-related. On
April 24, 2010, the Individual was cited for Battery, for his involvement in an incident that had
occurred when he was intoxicated. Exhibit 6 at 5. On February 3, 2008, the Individual was
arrested for Driving Under the Influence (DUI) and Open Container. On December 17, 2006, the
Individual was charged with DUI. In October 1999, the Individual was charged with Domestic
Assault and Resisting or Obstructing an Officer after an incident in which the Individual admits
he had been drinking. The Individual was also charged with DUI in March 1998, April 1996,
and June 1988. On January 24, 2009, the Individual was arrested for Driving Without Privileges
and Failure to Provide Insurance. In March 2008, the Individual was arrested for violating his
parole.
On February 28, 2011, the Individual completed and submitted an electronic form of a
Questionnaire for National Security Positions (QNSP).2 The Question 22 of the QNSP required
the Individual to list every criminal charge against him (for fines greater than $300) during the
previous seven years. Exhibit 3 at 30. The Individual omitted his April 24, 2010, citation for
Battery, his March 2008 arrest for parole violation, and his February 3, 2008, arrest for DUI and
Open Container from his response to Question 22. Id. at 30-33. The Individual also denied that
he had ever been charged with a felony offense. Id. at 30.
The LSO conducted a Personnel Security Interview (PSI) of the Individual on August 25, 2011.3
During this PSI, the Individual initially indicated that that he had been incarcerated because he
had committed a felony DUI. Exhibit 2 at 28. However, a few moments later, when the
Individual was asked why he had failed to indicate that he had been charged with a felony in his
answer to QNSP Question 22c, the Individual responded by claiming that he did not think that he
had ever been charged with a felony. Id. at 30. The Individual admitted that after he had his
driver’s license suspended in 2009, he continued to drive. Id. at 54. The Individual also
admitted that he violated parole by continuing to consume alcohol on occasion. Id. at 43.
During the PSI, the Individual was asked to give his account of the events resulting in his being
charged with Battery on April 24, 2010. The Individual claimed that his adult son was
brandishing a gasoline can and threatening to burn the Individual’s house down. Exhibit 2 at 57-
62. The Individual stated that he pushed his son in an attempt to get the gasoline can from him.
Id. at 62. The Individual initially claimed that he was not charged with any crime, but rather, his
son was charged with arson as a result of this incident. Id. at 57. The Individual then stated that
he “might” have received a citation. Id. The Individual admitted that he might have had a
couple of drinks prior to the incident. Id. at 59. The Individual further claimed that his daughter
2 A printed copy of the Individual’s February 28, 2011, QNSP appears in the record as Exhibit 2.
3 A written summery of the March 26, 1982, PSI appears in the record as Exhibit 13.
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was not present during the incident. Id. at 62.
The record contains a copy of an incident report (the Report) prepared by the local police as a
result of the April 24, 2010, incident.4 The Report’s description of the April 24, 2010, incident is
not consistent with the Individual’s account provided during the PSI. The Report indicates that
the Individual’s son (the son) had summoned police from a neighbor’s house. Exhibit 6 at 3. The
son told police that he had tried to intervene on his sister’s behalf because the Individual was
yelling obscenities at his sister (the Individual’s daughter). Id. The son further claimed that the
Individual, was intoxicated at the time. Id. According to the son, the Individual had grabbed
him by the shirt and shoved him into a wall. Id. at 4. The Individual, the son claimed, then
punched the son several times. Id. The Individual’s daughter (the daughter) was questioned by
police. The daughter told the police that her father was an alcoholic and that he was particularly
intoxicated. Id. at 4. The daughter reported that the Individual had shouted obscenities at her,
when her brother tried to intervene on her behalf. Id. She then heard a scuffle between her
father and brother. Id. The officer reported that he observed that the Individual appeared to be
“highly intoxicated.” Id. at 5. The Report further states that the Individual was cited for battery.
Id. at 6. The Report does not mention a gas can or allegations of attempted arson.
IV. ANALYSIS
A. Criterion F
The evidence discussed above indicates that the Individual repeatedly and intentionally provided
false or misleading information about his arrest record and criminal conduct. The Individual
intentionally provided this false information to government security officials in order to conceal
the recency of his criminal activity and to minimize the extent of his problematic conduct while
under the influence of alcohol for the purpose of maintaining his security clearance. The
Individual’s deliberate failure to provide accurate information in his QNSP and PSI, raises
doubts under Criterion F about his candor, honesty, and willingness to comply with rules.
“Conduct involving . . . 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.” 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) (Revised Guidelines), Guideline E at ¶ 15.
At the hearing, the Individual continued with his pattern of prevarication. During his testimony,
he continued his pattern of repeatedly contradicting himself and other sources. For example, the
Individual testified that he had overstated the frequency in which he would drive without a
license during the PSI. Tr. at 63-66. The Individual continued to maintain that the April 24,
2010, incident occurred as a result of his attempts to prevent his son from setting his home on
4 A copy of the Report appears in the record as Exhibit 6.
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fire with gasoline.5 Id. at 67-68. The Individual proceeded to testify that his son was arrested for
arson as a result of the April 24, 2010, incident.6 Id. at 79.
Based on the foregoing, I find that the Individual has not mitigated the serious security concerns
raised by his repeated provision of false information to DOE security officials. Therefore, the
security concerns associated with the Individual’s falsifications remain unresolved.
B. Criterion J
The Individual has a history of seven alcohol-related arrests, including five DUIs. These seven
alcohol-related arrests raise security concerns about the Individual under Criterion J. Excessive
alcohol consumption often leads to the exercise of questionable judgment or the failure to control
impulses, and can raise questions about an individual's reliability and trustworthiness.
Adjudicative Guidelines at ¶ 21. In the present case, an association exists between the
Individual’s consumption of alcohol and his subsequent failure to exercise good judgment and to
control his impulses, as evidenced by his repeated engagement in activities that required the
intervention of law enforcement to protect those around him.
I find that the Individual has not mitigated the security concerns raised by his problematic
alcohol use and use of alcohol habitually to excess. The Individual accepts that his alcohol use
has caused serious problems in his life. To this end, the Individual has testified that he has
stopped using alcohol. Tr. at 55-56. The Individual has testified that he has used alcohol on
only one occasion during the past two years. Id. at 56. The Individual has presented no
corroborative testimony in support of his claim, other than his daughter. I give little weight to
his daughter’s testimony, however. She no longer lives with him, and much of her testimony at
the hearing contradicted her previous statements recorded in the Report. Because the Individual
has not been diagnosed with any alcohol-related disorder, had I not found that the Individual’s
credibility was suspect, I might have been inclined to find that the Individual had mitigated the
security concerns raised by his problematic alcohol use and use of alcohol habitually to excess
by abstaining from alcohol use. However, because of my concerns about the Individual’s
credibility, I am not sufficiently convinced by the testimony of the Individual, and his daughter,
that the Individual is actually abstaining from alcohol. Accordingly, I find that the Individual
has not sufficiently mitigated the security concerns raised under Criterion J by the Individual’s
seven alcohol-related arrests.
C. Criterion L
The Individual’s nine arrests constitute a longstanding and substantial pattern of criminal
conduct which raises security concerns under Criterion L. “Conduct involving questionable
5 The Individual attempted to contradict the Report by presenting the testimony of his daughter, whom the
Individual claimed, at the PSI, was not present during the April 24, 2010, incident. Exhibit 2 at 62.
6 Exhibit 10 is a copy of the son’s police record, which shows that the son was not charged with arson during 2010.
The son, however, had been charged and convicted of arson for an incident that had occurred in 2008.
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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.” Adjudicative Guidelines at ¶ 15. “Criminal activity creates doubt about a person's
judgment, reliability and trustworthiness. By its very nature, it calls into question a person's
ability or willingness to comply with laws, rules and regulations.” Id. at ¶ 30. The Individual has
not offered any evidence or provided any compelling argument showing mitigation of the
security concerns arising from his longstanding and substantial pattern of criminal conduct.
Accordingly, I find that he has not resolved those security concerns arising from his criminal
conduct and behavior cited in the Notification Letter under Criterion L.
V. CONCLUSION
For the reasons set forth above, after carefully considering the evidence before me, I find that the
Individual has not resolved the security concerns raised under Criteria F, J, and L. Therefore, the
Individual has not demonstrated that grantng his security clearance 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 granted. The Individual may seek review
of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. Part 710.28.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: June 27, 2012