PSH-12-0041

* 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 24, 2012 )
) Case No.: PSH-12-0041
_________________________________________ )
Issued: June 22, 2012
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Decision and Order
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David M. Petrush, Hearing Officer:
This Decision considers the eligibility of XXXXXXX (the individual) to hold an access
authorization1 under the regulations at 10 C.F.R. Part 710, entitled “Criteria and
Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear
Material.” As I explain below, the Department of Energy (DOE) should not restore the
individual’s access authorization.
I. Background
In April 2011, the individual began his employment with a DOE contractor and received
a DOE access authorization. Tr. at 13, 29, 46; Ex. 3; Ex. 6 at 12. On January 13, 2012,
the individual began a suspension for five days without pay for using his government
computer for non-work activities. Ex. 5. Particularly, he conducted personal internet
searches, some of which included pornography. Id. In February 2012, the local security
office (LSO) called the individual to a personnel security interview (PSI) to explain his
actions. See Ex. 6.
In March 2012, the LSO issued the individual a Notification Letter advising him that it
possessed reliable information that created a substantial doubt about his eligibility to hold
an access authorization. Ex. 1. In an attachment, the LSO explained that the derogatory
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.
information falls within the potentially disqualifying criterion in the security regulations
at 10 C.F.R. § 710.8; subsection (l) (Criterion L).2
After the individual received the Notification Letter, he invoked his right to an
administrative review hearing. On April 25, 2012, the Director of the Office of Hearings
and Appeals (OHA) appointed me Hearing Officer, and I conducted the hearing. The
individual testified on his own behalf and called a former supervisor, his current
supervisor, a co-worker, a student minister, and a longtime friend. Each side offered
several exhibits.
II. The Notification Letter and the Security Concerns
The LSO supported its Criterion L security concern with the following allegations:
 In August 2011, the individual used his government computer to search for adult
entertainment for his friend’s bachelor party;
 From August 2011 to November 2011, the individual used his government
computer for internet searches that included pornography. He did so two days a
week between 5:00am and 6:00am, when he was alone; and
 In a February 2012 PSI, the individual admitted that he knew that viewing
pornography on his government computer violated security rules.
Ex. 1.
I find that the above information constitutes derogatory information that raises questions
about the individual’s conduct under Criterion L. 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. Guideline E, STEPHEN J. HADLEY, THE WHITE
HOUSE, ADJUDICATIVE GUIDELINES FOR DETERMINING ELIGIBILITY FOR ACCESS TO
CLASSIFIED INFORMATION (2005) 7. Further, noncompliance with rules, procedures,
guidelines, or regulations pertaining to information technology systems may raise
security concerns about an individual’s reliability and trustworthiness, calling into
question the willingness or ability to properly protect sensitive systems, networks, and
information. Guideline M, id. at 16.
III. Regulatory Standard
An administrative review under Part 710 is not a criminal matter, where the government
has the burden of proving the defendant guilty beyond a reasonable doubt. Rather, the
2 Criterion L includes “unusual conduct” and “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.” Id. at § 710.8(l).
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standard places the burden on the individual because it is designed to protect national
security interests. This is not an easy burden for the individual to sustain. The standard
implies a presumption against granting or restoring an access authorization. See Dep’t of
Navy v. Egan, 484 U.S. 518, 531 (1988) (“security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)
(strong presumption against the issuance of a security clearance).
A. The Individual’s Burden
The individual must present evidence to convince the DOE that granting an 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). The Part 710 regulations
permit the individual wide latitude to present evidence to resolve the security concerns.
Even appropriate hearsay evidence may be admitted. Id. at § 710.26(h). The individual
must present evidence to corroborate his or her efforts to resolve a security concern.
Personnel Security Hearing, Case No. TSO-0693 (2009).
B. The Basis for the Hearing Officer’s Decision
The Hearing Officer must issue a Decision that reflects his or her comprehensive,
common-sense judgment, after considering all relevant evidence, favorable and
unfavorable, whether granting or restoring an individual’s 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). The Hearing Officer must resolve doubt in favor of the
national security. Id.
To reach a common-sense judgment, the Hearing Officer must consider the factors listed
in 10 C.F.R. § 710.7(c)3 (the “whole person concept”) and the Adjudicative Guidelines.
The Adjudicative Guidelines contain “conditions” or circumstances that may mitigate the
allegations supporting each type of security concern.
IV. Findings of Fact
The individual graduated college in August 2001. Tr. at 19. After September 11, 2001,
he was hired in a national security position, given an access authorization, and deployed
overseas. Since then, he has worked at more than eight U.S. military and civilian bases.
Id. at 19, 22, 23.
In April 2011, a DOE contractor hired the individual, and he was granted a DOE access
authorization. Ex. 6 at 11-12. By late August 2011, two days a week he arrived at work
3 These factors include the nature, extent, and seriousness of the conduct; the circumstances surrounding
the conduct, including knowledge and participation; the frequency and recency of the conduct; the age and
maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or
presence of rehabilitation or reformation and other pertinent behavior 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. Id. at § 710.7(c).
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at 5:00am as part of a flexible schedule that allowed him to work and attend school.
Tr. at 14; Ex. 3. On those days, before 6:00am, he spent 5-10 minutes viewing sexually
explicit material on his government computer. Tr. at 15, 26; Ex. 3. After an internet
search, he scrolled over a thumbnail image of a video to preview it. Tr. at 16; Ex. 3.
During his misconduct, he was alone. Tr. at 26.
The individual’s first misuse of his government computer occurred when he sought to
obtain prices of exotic dancers for a friend’s bachelor party. Tr. at 24-25. The
individual’s conduct segued into viewing sexually explicit material because his wife had
medical problems that prevented intimacy. Id. at 13-14. On November 29, 2011, the
individual’s management received notice of his misconduct, and his misconduct ceased.
Id. at 34; Ex. 5.
The individual admitted that security rules forbade his misuse of the government
computer, but he had not thought of the rules when he violated them. Tr. at 15, 17. The
individual has since taken responsibility for his misconduct. Id. at 16, 34. Now he better
understands the LSO’s concerns with cyber security, has not repeated his misconduct,
and intends not to do so. Id. at 17, 28, 51-52. (The individual had not previously used a
government computer to access inappropriate material. Id. at 16, 22, 43, 48, 56.)
The individual has reflected on his misconduct. Tr. at 34. During the week of the
hearing, he spoke with a student minister for one hour. Id. at 32-33. The student minister
gave him scriptures and counseled him about making mistakes, having a clean heart, and
starting over. Id. at 33-34; see Ex. E. The individual saw that he was on the wrong path
and felt the need to re-direct his life. Tr. at 36, see id. at 62.
V. Analysis
To determine whether the individual has mitigated the allegations and therefore resolved
the security concern, I will consider the relevant factors from 10 C.F.R.
§ 710.7(c) and the relevant mitigating conditions from the Adjudicative Guidelines,
Guideline E (Personal Conduct) and Guideline M (Use of Information Technology
Systems).4
4 Guideline E contains the following mitigating conditions:
(a) the individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before confronted with the facts;
(b) the refusal or failure to cooperate, omission, or concealment was caused or significantly
contributed to by improper or inadequate advice of authorized personnel or legal counsel . . .;
(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent, or it
happened under such unique circumstances that it is unlikely to recur and does not cast doubt on
the individual’s reliability, trustworthiness, or good judgment;
(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 the
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I assign positive weight to several factors. The individual presented evidence suggesting
that he has a low likelihood of continuing his misconduct. His current and former
supervisors both vouched for him. The former supervisor of six or seven years testified
that he never had a problem with the individual. Tr. at 43-44. The current supervisor
trusts him and feels that he has been punished and can move on. Id. at 49. The
individual may be able to do so. He has had a successful career with an access
authorization, and since he was confronted, he has not repeated his misconduct. He
testified with a striking sincerity and candor.
No factor or series of factors is dispositive, but in this case, the negative factors do
outweigh the positive factors. The individual deliberately violated the security rules.
The extent and frequency of the misconduct show a pattern – he violated the security
rules twice a week for three months (approximately 24 times), at a time chosen to evade
detection (before 6:00am). And he did so knowingly and voluntarily, as a mature,
sophisticated adult. The individual’s supervisor knows of his misconduct, which lessens
his potential for pressure, coercion, exploitation, and duress. But the individual failed to
corroborate his testimony that his wife and family also know of his misconduct.5 He also
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; and
(f) the information was unsubstantiated or from a source of questionable reliability.
ADJUDICATIVE GUIDELINES at 8-9.
Guideline M contains the following mitigating conditions:
(a) so much time has elapsed since the behavior happened, or it happened under such unusual
circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment;
(b) the misuse was minor and done only in the interest of organizational efficiency and effectiveness
. . .; and
(c) the conduct was unintentional or inadvertent and was followed by a prompt, good-faith effort to
correct the situation and by notification of supervisor.
Id. at 16-17.
There is no requirement that any particular number of factors or conditions be proved or that a majority of
them point one way or the other. The relevance of each factor and condition depends on the facts. In this
case, certain factors and conditions may demonstrate mitigation, but in other cases, other factors and
conditions may do so. Adjudicatory review is not a mechanical point-counting device – the Hearing
Officer looks at the totality of the circumstances to make a common-sense, reasoned judgment whether the
individual has mitigated the allegations to resolve the security concern or concerns raised by the agency.
5 At the pre-hearing conference on May 3, 2012, the individual was told that he must provide
corroboration. Corroboration may take the form of testimony (in person or via telephone), an affidavit, or
other documentary evidence.
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failed to corroborate that a circumstance that had contributed to his misconduct – his
impaired relationship with his wife – has improved. Most importantly, the individual
committed his misconduct only recently – six months before the hearing.
The individual has not shown any mitigating conditions outlined in Guideline E or
Guideline M (see note 4, above). Of those not already addressed, he made no prompt,
good-faith effort to correct his misconduct. His misconduct was not caused by improper
or inadequate assistance of counsel. It was not done in the interest of organizational
efficiency and effectiveness.
Lastly, on the issue of reformation, the individual had one meeting with a student
minister, who counseled him. The meeting shows goodwill and a commendable
beginning effort. The individual’s earnest, sincere testimony showed that he has begun to
internalize the student minister’s guidance and apply it to his life. Too little time has
passed since the meeting, however, to determine whether the guidance will have a lasting
impact.
VI. Conclusion
Because the individual has not resolved the Criterion L security concern, I find that he
has not demonstrated that restoring his access authorization would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, I
find that the DOE should not restore his access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set
forth at 10 C.F.R. § 710.28.
David M. Petrush
Hearing Officer
Office of Hearings and Appeals
Date: June 22, 2012
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