PSH-12-0055

* 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 15, 2012 ) Case No.: PSH-12-0055
)
____________________________________)
Issued: August 30, 2012
______________
Decision and Order
_______________
Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (hereinafter referred to as “the
individual”) for 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.” 1 For the reasons set forth below, I conclude that the individual’s security
clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor, and was granted a
security clearance in connection with that employment. On October 11, 2011, the individual filed
for personal bankruptcy under Chapter 7 of the federal bankruptcy laws. Upon being apprised of
this, the local security office (LSO) summoned the individual for an interview with a personnel
1An 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. Such authorization will also be
referred to in this Decision as a security clearance.
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.
-2-
security specialist in order to address the security concerns raised by this filing. After this Personnel
Security Interview (PSI), the individual was referred to a local clinical psychologist (hereinafter
referred to as “the DOE psychologist”) for an agency-sponsored evaluation. The DOE psychologist
prepared a written report setting forth the results of her evaluation, and provided that report to the
LSO. After reviewing this report, the transcript of the PSI, and the rest of the individual’s personnel
security file, the LSO determined that derogatory information existed that cast into doubt the
individual’s eligibility for access authorization. They informed the individual of this determination
in a letter that set forth the DOE’s security concerns and the reasons for those concerns. I will
hereinafter refer to this letter as the Notification Letter. 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 the Office of
Hearings and Appeals, and I was appointed the Hearing Officer. The DOE introduced seven exhibits
into the record of this proceeding and presented the testimony of the DOE psychologist at the
hearing. The individual introduced 13 exhibits and presented the testimony of two witnesses, in
addition to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraphs (h) and (l) of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8.
Under criterion (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a licensed clinical psychologist causes, or may cause, a
significant defect in the individual’s judgement or reliability.10 C.F.R. § 710.8(h). As support for
this criterion, the Letter cites the diagnosis of the DOE psychologist that the individual suffers from
Pathological Gambling Disorder and Impulse Control Disorder Not Otherwise Specified (NOS), and
her conclusion that these Disorders cause, or could cause, a significant defect in the individual’s
judgement or reliability.
Criterion (l) defines as derogatory information indicating that the individual has “engaged in any
unusual conduct or is subject to any circumstances which tend to show that he is not honest, reliable,
or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion,
exploitation or duress which may cause him to act contrary to the best interests of the national
security.” Such conduct includes, but is not limited to, “a pattern of financial irresponsibility”
-3-
10 C.F.R. § 710.8(l). As support for this criterion, the Letter cites the individual’s statements during
his psychological evaluation and during his PSI indicating that:
1. Over the past year he has gambled one to three times per week and has set dollar limits of
$40 to $60 per visit, but has regularly exceeded them, spending $200 to $300 per visit, with
the most being $500;
2. He sometimes “chases his losses” by withdrawing more money from automatic teller
machines at the casinos and feels remorse after gambling because he believes that there were
better things he could have done with his money;
3. He has used money allocated for paying bills, money obtained through payday loans, money
borrowed from other financial institutions, and money borrowed from his brother to gamble;
4. He has continued to gamble despite owing $17,937 and $1,678, respectively, in back federal
and state taxes and $36,851 in student loans, which he has not yet begun to repay, and
despite having to obtain multiple payday loans to pay for food, utilities, and other everyday
necessities;
5. He has made unwise financial decisions and has purchased items on credit, not because he
needed them, but because they were on sale; and
6. On October 11, 2011, he filed for bankruptcy under Chapter 7 of the federal bankruptcy
laws.
This derogatory information adequately justifies the DOE’s invocation of criteria (h) and (l), and
raises significant security concerns. An individual who is financially overextended is at risk of
having to engage in illegal acts to generate funds. Moreover, a duly qualified mental health
professional has determined that the individual suffers from a mental or emotional condition that can
impair his judgement, reliability or trustworthiness. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19, 2005),
Guidelines F and I.
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 or
-4-
unfavorable, that has a bearing on the question of whether granting or restoring a 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, 24 DOE ¶ 82,752 at 85,511 (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
At the hearing, the individual generally did not contest the allegations set forth in the Notification
Letter, and testified that, overall, he agreed with the DOE psychologist’s report. Hearing Transcript
(Tr.) at 29. Accordingly, his testimony, and that of his brother and his psychologist, was aimed at
demonstrating that he is now behaving in a financially responsible manner and that he is sufficiently
rehabilitated from his gambling and impulse control disorders to no longer represent an unacceptable
security risk. That testimony, as described below, indicates that the individual has taken all of the
right initial steps to address his financial and psychiatric issues, but that these measures have been
in effect for a relatively short period of time.
The individual testified about his current financial and psychological health. Regarding his finances,
the individual testified that he has established repayment plans with each of the three creditors (the
state and federal governments for unpaid back taxes and a private institution for his student loans)
whose debts were not extinguished during the individual’s 2011 bankruptcy, and that he is current
on these payments and in paying his monthly bills. Tr. at 13-14. The individual was previously
unable to pay his taxes in full because he falsely claimed nine exemptions in order to reduce the
amount of money withheld from his bi-weekly paycheck. DOE Exhibit 7 at 61. At the hearing,
however, he stated that he has corrected the number of exemptions claimed on his taxes, and an
-5-
appropriate amount is now being withheld from his paycheck. Tr. at 15. In fact, the individual
testified that he is expecting a refund on his 2012 taxes, which will be applied to lower his debt to
the IRS. Tr. at 24. Finally, the individual is receiving counseling from a financial advisor, has
formulated a budget, and is adhering to that budget. Tr. at 22.
Concerning his gambling and impulse control disorders, the individual testified that he started
gambling in 2000, but he does not believe that it became a problem until 2009, when he started
going to casinos more frequently and betting more heavily. Tr. at 28-29. After his security clearance
was suspended in March 2012, the individual decided to stop gambling. Tr. at 67. His last bet was
placed on March 16. Tr. at 32. The individual’s brother confirmed this, testifying that the individual
is “a changed man.” Tr. at 74, 77. Approximately one month prior to the hearing, the individual said,
he began seeing a psychologist for treatment for his gambling and impulse control disorders. Tr. at
58. His four sessions with the psychologist, as of the date of the hearing, have helped him to realize
that he had a serious gambling problem, one that he tended to minimize when he was evaluated by
the DOE psychologist. Tr. at 29, 58. The individual further stated that he does not miss gambling,
and that he feels strongly that he is not going to gamble again. Tr. at 32, 49.
The individual’s psychologist testified that his four 45 minute sessions with the individual have been
“principally concerned with the maintenance of the cessation of the spending,” and recognition of
the individual’s culpability for his current situation. Tr. at 101, 104. The individual is serious about
his therapy, and now seems to have a substantive understanding of his impulse control issues that
he did not previously possess. Tr. at 103.
Like the DOE psychologist, the individual’s psychologist diagnosed the individual as suffering from
Impulse Control Disorder NOS. Although he testified that the individual has a “significant gambling
problem,” and meets a number of the diagnostic criteria for Pathological Gambling Disorder, he
could not confirm the DOE psychologist’s diagnosis in this respect. Tr. at 108. The individual’s
psychologist did not specify his reasons for disagreeing with this portion of the DOE psychologist’s
diagnosis. However, he observed that the individual’s spending problems and gambling problems
“com[e] from the same dynamic,” and this, and not the exact diagnosis, is what is of particular
concern to him. Id. The individual’s psychologist concluded that the individual’s prognosis is
favorable, because of: (i) the individual’s honesty in his meetings with him and with the DOE
psychologist; (ii) the absence of co-morbid disorders; (iii) an absence of impulsive behaviors at
work; and (iv) a decrease in the individual’s defensiveness and minimization of his condition. Tr.
at 113-114.
After reviewing this testimony and the exhibits submitted by the parties to this proceeding, I
conclude that the individual is in the initial stages of his recovery from his gambling and impulse
-6-
control disorders. 3 As an initial matter, I find the DOE psychologist’s diagnosis of Pathological
Gambling Disorder to be more convincing that the individual’s psychologist’s apparent, but
unspecified, disagreement with that diagnosis. In her report, the DOE psychologist concluded that
the individual met eight of the ten diagnostic criteria for Pathological Gambling Disorder set forth
in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (Text Revision). DOE
Ex. 4 at 8-9. The DOE psychologist’s findings in this regard are adequately supported by the record.
Furthermore, the record in this matter indicates that, as of the date of the hearing, the individual had
been in counseling for only one month and had abstained from gambling for only four months.
Although the individual’s psychologist testified that the individual’s prognosis is good, he made it
clear that there is additional work to be done in therapy. Specifically, he said that potential issues
regarding shame on the part of the individual concerning his situation need to be addressed, as well
as measures intended to insure the continuance of the individual’s “spending sobriety.” Tr. at 105.
The DOE psychologist agreed with the individual’s psychologist that the individual’s prognosis was
good, but with the important caveat that he maintain his abstinence from gambling and his
participation in therapy. Tr. at 134. She characterized the brevity of the individual’s period of
abstinence as one of her biggest concerns. Tr. at 136. Given the limited duration of his time in
counseling and his relatively brief period of abstinence from gambling, I am not convinced that his
chances of relapsing are sufficiently low at this time to justify restoration of his security clearance.
See, e.g., Personnel Security Hearing, Case No. TSO-0921 (2010) (14 months’ abstinence from
gambling insufficient to demonstrate adequate evidence of reformation or rehabilitation from
Pathological Gambling Disorder); Personnel Security Hearing, Case No. TSO-0852 (2009) (4 ½
months insufficient); Personnel Security Hearing, Case No. TSO-0767 (2009) (6 months
insufficient); Personnel Security Hearing, Case No. TSO-0211 (2005) (6 months insufficient);
Personnel Security Hearing, Case No. VSO-0462 (2001) (9 months insufficient).
I am further concerned that a resumption in gambling will lead to a return of the individual’s
financial difficulties. The individual’s budget reflects a monthly income of $3,473 and expenses,
including debt repayment, in the same amount. Although there are discretionary funds in the budget
3 Although I requested it on two occasions, one of the exhibits referred to by the individual and his
counsel at the hearing, Individual’s Exhibit 4, was never formally submitted into evidence. See e-
mails from Robert Palmer to Don Harris, counsel for the individual, dated July 24 and August 3,
2012. According to the individual, this exhibit consists of tithing statements from the individual’s
church and PayPal statements indicating the timing and amounts of the individual’s tithes. Tr. at 15-
16. Assuming that the individual’s characterizations of these documents, and the documents
themselves, are accurate, they do not alter my conclusion as to the individual’s suitability for access
authorization.
-7-
for entertainment and dining out, and $100 per month allocated to savings, the individual himself
called the budget “tight.” Tr. at 94. Given this situation, significant gambling losses like those that
he previously experienced would likely make it impossible for him to continue to meet his financial
obligations. For these reasons, I conclude that significant security concerns remain under criteria (h)
and (l).
V. CONCLUSION
As set forth above, I find that the individual has not successfully addressed the security concerns set
forth in the Notification Letter. I therefore conclude 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. Accordingly, I find that the individual’s security clearance should not be
restored at this time. The individual may seek review of this Decision by an Appeal Panel under the
procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: August 30, 2012