PSH-12-0050

* 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: May 9, 2012 )
) Case No.: PSH-12-0050
)
___________________________________ )
Issued: July 27, 2012
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Hearing Officer Decision
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Kent S. Woods, Hearing Officer:
This Decision considers the eligibility of XXXXXXX XXXXXXX (hereinafter referred
to as “the individual”) to hold an 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.” As explained below, it is my
decision that the individual should not be granted an access authorization.
I. BACKGROUND
The individual’s present employer, a DOE contractor, has requested a DOE access
authorization for the individual. The individual completed and submitted an Electronic
Questionnaire for Investigations Processing (QNSP) in November 2011. DOE Exhibit 8.
Based on issues contained in the individual’s security file, the Local Security Office
(LSO) conducted a Personnel Security Interview (PSI) with the individual in January
2012. DOE Exhibit 9. In March 2012, a DOE-consultant Psychologist evaluated the
individual, and memorialized his findings in a Psychological Assessment Report (the
Report). DOE Exhibit 4.
In April 2012, the LSO issued a Notification Letter to the individual, together with a
Summary of Security Concerns (Enclosure 2) setting forth the information that created a
substantial doubt about the individual’s eligibility to hold a DOE security clearance. DOE
Exhibit 1. Specifically, the LSO identifies information indicating that the individual
deliberately falsified his QNSP. In addition, the LSO finds that the individual provided
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information during his March 2012 psychological assessment that indicates that he
previously had provided inaccurate information to the DOE concerning his criminal
record and his use of prescription drugs. These findings raise security concerns under the
provisions of 10 C.F.R. Section 710.8(f).
The LSO also finds that the DOE-consultant Psychologist has concluded that the
individual meets the Diagnostic and Statistical Manual of the American Psychiatric
Association, IVth Edition, TR criteria for antisocial tendencies, and that this mental
condition is likely to cause serious defects in his judgment and reliability, thereby raising
a security concern under the provisions of 10 C.F.R. Section 710.8(h). Finally, the LSO
finds that the individual’s history of legal infractions raises concerns about his honesty,
reliability and trustworthiness, which is a security concern under 10 C.F.R. Section
710.8(l).
In April 2012, the individual responded to the concerns raised in the Notification Letter
and requested a hearing (hereinafter “the hearing”). See Individual’s Response, DOE
Exhibit 2. On May 9, 2012, the Office of Hearings and Appeals Director appointed me
the Hearing Officer in this case. At the hearing I convened in this matter in June 2012, I
received testimony from six persons. The DOE presented the testimony of the DOE-
consultant Psychologist. The individual testified and presented the testimony of his
mother, his father, a security guard/friend at the facility where he works, and his best
friend’s mother. Discussion at the hearing centered on the incidents in the individual’s
life that formed the basis for the LSO’s Criteria H and L concerns, as well as the
individual’s explanations for the allegedly false responses made on his QNSP and at his
PSI.
II. APPLICABLE STANDARDS
A DOE administrative review proceeding under this Part is not a criminal case, in which
the burden is on the government to prove the defendant guilty beyond a reasonable doubt.
In this type of case, we apply a different standard, which is designed to protect national
security interests. A hearing 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). The burden is on the individual to come forward at the hearing with
evidence to convince the DOE that granting or restoring his 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(d). This standard reflects a presumption against
granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (the “clearly consistent with the interests of national security test” for the
granting of security clearances indicates “that security determinations should err, if they
must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security
clearance).
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III. ANALYSIS AND FINDINGS
A. Criterion H Concerns
1. The DOE-consultant Psychologist correctly found that the Individual has
Antisocial Tendencies
In the administrative review process, it is the Hearing Officer who has the responsibility
for forming an opinion as to whether an individual has been properly diagnosed or
assessed with a mental condition. See 10 C.F.R. § 710.27. Hearing Officers properly give
deference to the expert opinions of psychiatrists and other mental health professionals
regarding these diagnoses. See, e.g., Personnel Security Hearing, Case No. TSO-0401
(2006). As noted above, in his Report, the DOE-consultant Psychologist concluded that
the individual has antisocial tendencies, a mental condition that is likely to cause serious
defects in the individual’s judgment and reliability.1 At the hearing, the individual
testified that he disagreed that he had anti-social tendencies, asserting that the DOE-
consultant Psychologist made his finding based on the limited information before him,
but if he knew the individual better he would not have reached that conclusion. TR at
128. In his Response to the Notification Letter and in his hearing testimony, the
individual described the incidents cited in the Report, and provided explanations and
evidence aimed at showing that in many instances he was not a participant in alleged
wrongdoing or that he was responding to threatening behavior by others, or that his legal
infractions were unintentional. He acknowledged responsibility for other incidents or
wrongdoing, expressed regret for his actions, and provided witness testimony supporting
his honesty and good character. In cases like this one, where there is a disagreement
concerning the finding of a mental condition, the DOE Hearing Officer must make a
determination based on the available evidence. As discussed below, I find that while the
individual has provided some exculpatory evidence, the DOE-consultant Psychologist’s
findings should be upheld.
As support for his finding of antisocial tendencies, the DOE-consultant Psychologist
refers in his Report to the individual’s police record as a child, citing the individual’s
involvement in a 1997 incident where a neighbor’s car was damaged, and a 2001 incident
where the individual and several other youths were reportedly observed throwing
furniture into a swimming pool. Report at 3-4. At the Psychological Assessment, the
individual acknowledged that at about the age of 13, he began to become easily and
intensely angry, and that his police record continued as a juvenile. In 2003, the
individual was arrested for battery when he allegedly became angry with his mother,
grabbed her arms, kicked the refrigerator, and punched the walls. In 2004, he was cited
for underage drinking, and later that year, he was cited for being verbally abusive to a
police officer who had ordered him to kneel during a police action. In 2006, the
individual was cited for Domestic Violence after his aunt and parents witnessed him
1 At the hearing, the DOE-consultant Psychologist explained that his finding of antisocial tendencies is not
a DSM-IV TR diagnosis, but is an appraisal of problem personality characteristics based on DSM-IV TR
standards. Hearing Transcript (TR) at 169-170.
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threatening his older brother with a baseball bat and called the police. Id. at 4-5. The
DOE-consultant Psychologist also finds that as a juvenile and an adult, the individual has
had several tickets for speeding, and at age 19 was cited for causing an accident and for
leaving the scene of an accident. In 2010, when the individual was in his early 20’s, he
was arrested for shoplifting video games. Id. at 5-6.
In addition to the individual’s police record, the DOE-consultant Psychologist finds that
the individual has been evasive and dishonest in explaining these incidents to the DOE.
With respect to the 2004 incident of verbal abuse to a police officer, the DOE-consultant
Psychologist notes that the individual told him that he omitted describing his verbal abuse
in this incident at the PSI because he did not know that the interviewer knew about the
verbal abuse. Id. at 5. With respect to his 2010 theft of video games, the police record
indicates that the individual initially told police that he stole the games so that he could
make money by selling them. However, the individual told the OPM investigator that he
stole the games because he was angry that the store would not allow him to exchange a
defective video game cartridge without a receipt, and, at the PSI, he stated that he was
angry with the store because the game cartridge was missing from a video game that he
purchased. When asked about these stories at his Psychological Assessment, the
individual admitted that he took the video games in order to sell them, and that he made
up the stories about purchasing a defective video game because he was ashamed of his
action and wanted to make himself “look better.” Id. at 6.
The DOE-consultant Psychologist concluded that although the individual did not
manifest the core feature of an Antisocial Personality Disorder, which is a pervasive
disregard for others, his long history of legal infractions and his tendency to misrepresent
the facts indicated that the individual has antisocial tendencies that will likely continue to
cause serious defects in his judgment and reliability. The DOE-consultant Psychologist
also noted in his Report that the individual had a high score for Antisocial Behavior when
he was tested with the Minnesota Multiphasic Personality Inventory-2 Restructured Form
(MMPI-2-RF) personality test.2 The DOE-consultant Psychologist further noted that he
believed that the individual’s “willful violations of societal norms are in the past, but that
his misrepresentations of their truth are in the present.” Id. at 8.
The DOE-consultant Psychologist’s finding of antisocial tendencies in his Report appears
reasonable based on the individual’s record of legal problems and responses made during
his Psychological Assessment. With one exception, I find that the evidence presented by
the individual at the hearing does not refute the factual bases for this finding. In that
instance, the individual’s mother testified that she was present during the 2006 incident
when the individual wielded a baseball bat against his brother. She confirmed the
individual’s account that he raised the bat only as a defensive gesture against his brother,
who is bi-polar and has a history of violent behavior towards him. TR at 28-29,
Individual’s Response at 5, TR at 163. However, with regard to the other incidents where
the individual denied culpability, the only evidence is testimony from his parents that
they believe him. For example, the individual asserted that older children were
2 At the hearing, the DOE-consultant Psychologist stated that only about one percent of males who take the
MMPI-2-RF score as high as the individual did for Antisocial Behavior. TR at 179.
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responsible for the property damage in the 1997 and 2001 incidents. TR at 158-159. His
parents did not witness this incident, and his father could only testify that the police
officer who responded to the 2001 incident told him that he tended to believe the
individual’s explanation that he was not involved in the vandalism. TR at 105-106.
The individual’s mother also testified that she accepted the individual’s account that he
verbally abused a police officer in 2004 because he was being treated roughly for no
reason by the officer. TR at 30. She asserted that the individual is basically honest,
trustworthy and deserving of a security clearance. TR at 46-47. The individual’s father
testified that the individual can be trusted, and that most of the individual’s police record
consists of minor infractions. TR at 82-84. The mother of the individual’s best friend
testified that the individual has been a good friend to her son since they were 13, and that
he has been loyal and devoted to her son, who has serious medical problems. She also
believes that the individual is trustworthy and responsible, and that he deserves a security
clearance. TR at 54-59.
I find these generalized assertions of trustworthiness by the individual’s witnesses
insufficient to outweigh the individual’s series of police incidents and admitted false
statements. Indeed, the individual’s mother confirmed that during an argument with the
individual in 2003, she called the police because she was concerned that the individual
was imitating his older brother’s threatening behavior, and she wanted to stop it. TR at
24-25. The individual acknowledged his threatening behavior towards his mother during
this incident. TR at 156-157. He also admitted to other illegal behavior that supports the
DOE-consultant Psychologist’s finding. He confirmed that he has received several
tickets for speeding, although he asserted that his violations of the speed limit were
relatively minor, and that he speeds unintentionally when he is in a hurry. TR at 146,
153. He admitted that he collided with another car when he was 19 because he was
texting while driving. TR at 146. With respect to his 2010 arrest for theft, he confirmed
that he committed theft, and he admitted that he provided the OPM and DOE with
conflicting explanations for the theft out of embarrassment. TR at 123-127.
Based on the documentary evidence and testimony in this proceeding, I conclude that the
DOE-consultant Psychologist appropriately found that the individual’s police record and
his instances of omitting or minimizing his wrongdoing to the DOE indicate that the
individual has antisocial tendencies. This finding of antisocial tendencies raises a
Criterion H security concern because it clearly is a mental condition that can “impair
judgment, reliability, and trustworthiness.” Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, Assistant to the President
for National Security Affairs (December 29, 2005) (Adjudicative Guidelines),
Guideline I.
2. The Individual has not Mitigated his Antisocial Tendencies
I find that the individual’s recent behavior has not mitigated the concerns arising from the
DOE-consultant Psychologist’s finding in his Report. At the hearing, the individual
asserted that his previous omissions and minimizations of negative information were
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caused by his inexperience with the security clearance process and by his embarrassment,
and that he is now being honest and trustworthy with the DOE concerning his police
record. TR at 9-10, 194-195. The individual’s father testified that he accepts the
individual’s explanation that he did not deliberately omit information from his QNSP,
and that his son now understands the importance of providing full information to the
LSO. TR at 82-84. The security guard/friend testified that he has known the individual
for several months, and that the individual is truthful and honest, does his job very well,
and has raised no security problems in the workplace since the individual was hired in
2011. TR at 65, 69-70. He also stated that the individual is even tempered, not
impulsive, and drives only about three miles over the speed limit. TR at 72-73.
After listening to this testimony, the DOE-consultant Psychologist stated that he believed
that the individual continues to exhibit anti-social tendencies, and that this sort of
characterological behavior is not readily changed. He stated that the individual is
working his way toward being more honest, but that he is not there. TR at 170-173. He
asserted that at the hearing, the individual continued to misrepresent facts when he
testified that he voluntarily came forward and set the record straight concerning his false
explanations for the 2010 theft. The DOE-consultant Psychologist asserted that the
individual only told the truth concerning his motive for stealing the video games after he
was confronted with the conflicting explanations that he had provided to OPM and the
LSO. TR at 175-176. He also stated that the individual’s failure at the PSI to describe
his angry and abusive behavior toward a police officer in 2004 was not just a failure to
provide details but a misrepresentation of the incident. TR at 177-179. He opined that
the individual can redefine in his mind what he is being asked so that he can deny
receiving a speeding ticket because that ticket was later dismissed. The DOE-consultant
Psychologist concluded that the individual cannot be trusted to tell the truth in a crisis.
He stated that the individual’s tendency to normalize his bad behavior, (i.e., a lot of
people get speeding tickets), is another indication that he cannot yet be trusted to be
completely truthful with the DOE. TR at 180-181. He testified that the individual
eventually should become more reliable as his personality matures, but that his reliability
will be difficult to assess because his explanations are persuasive, and because he only
lies in situations where he is trying to avoid bad consequences from his actions. TR at
181-182, 191-192.
The DOE-consultant Psychologist convinced me that the individual has not yet
demonstrated that he will come forward and report negative information to the DOE in an
honest and straightforward manner. Accordingly, I find that the individual has a current
problem with antisocial tendencies, and has not mitigated the Criterion H security
concern raised by the DOE-consultant Psychologist’s finding. See Adjudicative
Guidelines, Guideline I(e).
B. The Criteria F and L Concerns
With respect to Criterion F, the Summary of Security Concerns indicates that the
individual may have deliberately falsified certain responses on his QNSP concerning past
medical treatment and his police record, and that information that he provided at his
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Psychological Assessment indicates that he previously provided inaccurate information at
his PSI concerning his police record and his use of prescription drugs. DOE Ex. 1. In his
Response and in his testimony at the hearing, the individual asserted that aside from his
account of his 2010 arrest for theft, he did not intentionally falsify any of his responses
on the QNSP or at the PSI. He explained that in certain instances he misinterpreted the
question to exclude the relevant information, erroneously recalled the incident as having
occurred outside the timeframe of the question, or erroneously interpreted questions to
have limited time frames when they did not. With respect to his omissions and
misstatements at the PSI, he asserted that he omitted information because he did not
understand the importance of providing detailed responses, and that he simply did not
accurately recall the details of his prescription drug usage. Response at 2-1, TR at 114-
128.
After reviewing these responses, I find that the individual has resolved a single instance
of alleged falsification for failing to report a criminal charge. See Summary of Concerns,
Paragraph 1(b). As discussed above, he has established that he did not assault his brother
with a baseball bat in 2006, and the police report of that incident indicates that the
individual’s brother was the sole person arrested and charged. See DOE Counsel’s
June 21, 2012 email attaching OPM copy of individual’s police record. I therefore
conclude that the individual was not required to identify this incident on his QNSP.
However, I cannot accept the individual’s other explanations. In light of the DOE-
consultant Psychologist’s finding of antisocial tendencies that affect the individual’s
honesty and the individual’s admitted falsifications in his accounts of his 2010 arrest for
theft, I am not convinced by the individual’s assertions that he did not deliberately omit
or misrepresent other relevant information on his QNSP and at his PSI. Moreover, I find
the individual to be an intelligent and articulate young man. It therefore strains credulity
for me to accept the individual’s explanation that he could not understand the plain
meaning of a question, or that he provided incomplete or misleading information due to
confusion or poor memory. As discussed above, the individual has not shown that these
omissions and misrepresentations were isolated in nature or unlikely to recur, or that he
made voluntary efforts to correct them. See Adjudicative Guidelines, Guideline E(17).
Accordingly, I find that the individual has failed to resolve the LSO’s Criterion F
concerns.
Finally, I find that the individual’s legal record raises Criterion L concerns about his
honesty, reliability and trustworthiness that have not been resolved. Aside from the 2006
incident resulting in the arrest of his brother, the individual has not shown that the
fourteen citations and charges listed in Section III of the Summary of Concerns are
inaccurate. The most recent of these citations occurred in September 2011, less than ten
months prior to the hearing, and his arrest for theft occurred less than two years prior to
the hearing. The individual’s apparent willingness to conform to legal requirements in
recent months is a positive development. However, I find that in light of his extensive
record of infractions and his ongoing problem with personal honesty, the individual has
not yet shown that his past behavior is unlikely to recur. See Adjudicative Guidelines,
Guideline J(32).
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IV. CONCLUSION
For the reasons set forth above, I find that the individual was properly found to have
antisocial tendencies, a mental condition that is subject to Criterion H. Further, I find that
this derogatory information under Criterion H has not been mitigated sufficiently at this
time. I further find that the individual has not mitigated all of the DOE’s Criteria F and L
concerns. Accordingly, after considering all of the relevant information, favorable or
unfavorable, in a comprehensive and common-sense manner, I conclude that the
individual has not demonstrated that granting him an access authorization would not
endanger the common defense and would be clearly consistent with the national interest.
The individual or the DOE may seek review of this Decision by an Appeal Panel under
the regulation set forth at 10 C.F.R. § 710.28.
Kent S. Woods
Hearing Officer
Office of Hearings and Appeals
Date: July 27, 2012