PSH-12-0133

* 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: November 21, 2012 ) Case No.: PSH-12-0133
)
_________________________________________ )
Issued: March 5, 2013
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization1 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
fully discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should not be granted.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In May 2012, as part of a background investigation, the Local Security
Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address
concerns about the individual’s misrepresentations and misuse of information on a company
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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computer. On September 7, 2012, the LSO sent a letter (Notification Letter) advising the
individual that it possessed reliable information that created substantial doubt regarding his
eligibility to hold an access authorization. In an attachment to the Notification Letter, the LSO
explained that the derogatory information fell within the purview of two potentially disqualifying
criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsections (f) and (l)
(hereinafter referred to as Criteria F and L, respectively).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the individual presented his own testimony and that of four witnesses. The DOE
counsel did not present any witnesses. The DOE presented a number of written exhibits prior to
and after the hearing.
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding 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 standard in this proceeding 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
regulatory standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting security clearances indicates “that security
determinations should err, if they must, on the side of denial”); 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).
The individual must come forward at the hearing with evidence to convince the DOE that
granting his 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 individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
2 Criterion F pertains to information that a person has “[d]eliberately misrepresented, falsified, or omitted
significant information from a Personnel Security Questionnaire, a Questionnaire for Sensitive (or National
Security) Positions, a personnel qualifications statement, a personal security interview, written or oral statements
made in response to official inquiry on a matter that is relevant to a determination regarding eligibility for DOE
access authorization, or proceedings conducted pursuant to § 710.20 through § 710.31.” 10 C.F.R. § 710.8(f).
Criterion L relates to information that a person has “[e]ngaged 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 . . .” 10 C.F.R. § 710.8(l).
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authorization. The Part 710 regulations are drafted so as to permit the introduction of a very
broad range of evidence at personnel security hearings. Even appropriate hearsay may be
admitted. 10 C.F.R. § 710.26(h). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
B. Basis for Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to issue a
Decision that reflects my comprehensive, common-sense judgment, made after consideration of
all the relevant evidence, favorable and unfavorable, as to whether the granting or continuation
of a person’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). I am instructed by the
regulations to resolve any doubt as to a person’s access authorization in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites two potentially disqualifying criteria as bases for denying the
individual’s security clearance, Criteria F and L. To support its reliance on Criterion F, the LSO
alleges that the individual deliberately omitted information from a Questionnaire for National
Security Positions (QNSP) regarding a reprimand he received from a previous employer for
violating company policy as well as a termination from employment. From a security
standpoint, false statements made by an individual in the course of an official inquiry regarding a
determination of eligibility for DOE access authorization raise serious issues of honesty,
reliability and trustworthiness. The DOE security program is based on trust, and when a security
clearance holder breaches that trust, it is difficult to determine to what extent the individual can
be trusted again in the future. See Guideline E of the Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information issued on December 29, 2005, by
the Assistant to the President for National Security Affairs, The White House (Adjudicative
Guidelines).
As for Criterion L, the LSO alleges that the individual, during a PSI, admitted that from 2002
through 2007, he violated company policy by sending and receiving inappropriate e-mails. He
further admitted that on previous employment applications, he did not list that he was terminated
from an employer in 2007 for misuse of information technology. The individual’s vulnerability
to blackmail, exploitation, and duress calls into question the individual’s judgment, reliability,
trustworthiness and his ability to protect classified information. See id. at Guideline E.
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IV. Findings of Fact
On December 20, 2011, the individual completed a QNSP certifying that he had not received a
written warning, been officially reprimanded, suspended, or disciplined for misconduct in the
workplace, such as a violation of a security policy. However, during a PSI conducted on May
24, 2012, he admitted that he was officially reprimanded due to misuse of information while
employed with a company in 2007. Specifically, the individual admitted that from 2002 through
2007, he violated company policy for an hour each day, when he sent and received racist e-mails,
political e-mails, pornographic photographs and video e-mails, and viewed adult websites on his
company computer. The individual admitted that he did not list this information on the QNSP
and answered the questions incorrectly because he did not want to get caught and did not want
anyone to know about this information. He admitted that it was his intent to mislead the DOE.
During his 2011 QNSP, the individual also certified that he had not been fired in the last seven
years. However, during his 2012 PSI, he admitted that he was terminated due to misuse of
information while employed with a company in 2007. Again, he admitted that he did not list this
information on the QNSP because he did not want to get caught and did not want anyone to
know about the information. In addition, during his 2011 QNSP, the individual certified that he
has not introduced, removed, or used hardware, software, or media in connection with any
information technology system without authorization, when specifically prohibited by rules,
procedures, guidelines or regulations. However, as stated earlier, the individual admitted to
sending and receiving inappropriate e-mails on his company computer, typically once a day or
ten times per week from 2002 until 2007.
V. Analysis
I have thoroughly considered the record in this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c)3 and the Adjudicative Guidelines. After due deliberation, I
have determined that the individual’s access authorization should not be granted. I cannot find
that granting the individual’s DOE security clearance will not endanger the common defense and
security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific
findings that I make in support of this decision are discussed below.
3 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct, the age
and maturity at the time of the conduct, the voluntariness of his 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.
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A. Criterion F
During the hearing, the individual was asked why he answered “No” on his 2011 QNSP
regarding whether he had ever had a received a written warning, been officially reprimanded,
suspended, or disciplined for misconduct in the workplace. Transcript of Hearing (Tr.) at 56. He
testified that he answered “No” because he did not want anyone to know this information. Id.
The individual further testified that he purposefully misrepresented this information, although he
also testified that he did not really remember that he had been officially reprimanded for misuse
of information at a previous employer. Id. at 57. He later testified, however, that he was not
honest when answering this question because he was worried about his job and admits that his
answer on the QNSP shows his deceitfulness. Id. at 59 and 60. With respect to the question on
his QNSP related to whether he had been fired in the last seven years, the individual testified that
he answered “No” to this question because his employer at the time told him that he was not
fired, although the individual acknowledged that his badge was removed from him. Id. at 61.
The individual acknowledged that he “left [the employer] by mutual agreement” which is the
actual wording in the QNSP. Id. at 62 and 70. He again testified that he intentionally answered
this question incorrectly because he was embarrassed and because he wanted to remain
employed. Finally, with respect to the portion of the QNSP that refers to the individual’s
certification that he has not introduced, removed, or used hardware, software or media in
connection with any information technology system without authorization, the individual
testified that he answered “No” to this question because he believed the question was referring to
whether he had ever physically damaged a computer. Id. at 71-73. He asserted that, with respect
to this question on the QNSP, he did not intentionally misrepresent information, but rather he did
not understand the question at the time he filled out the form. Id. Based on the foregoing, I find
that the individual deliberately falsified at least two questions on his QNSP.
To determine whether the individual has mitigated the Criterion F concerns, I considered the
relevant factors set forth in Adjudicative Guideline E. I find that none of the relevant factors
apply in this case. Specifically, the individual did not meet ¶ 17(a) because the individual did
not make prompt, good-faith efforts to correct his omission, concealment, or falsification before
being confronted with the facts during his 2012 PSI. He did not meet ¶ 17(c) because the
individual’s falsifications were serious and relatively recent. The individual’s behavior did not
occur under such unique circumstances that it is unlikely to recur. In addition, the individual did
not meet ¶ 17 (e) because he has not demonstrated that he has taken positive steps to reduce or
eliminate vulnerability to exploitation, manipulation, or duress.4 See Adjudicative Guidelines at
4 Guideline E Paragraph17 outlines the conditions that could mitigate security concerns raised under Criterion F.
Paragraph 17(c) states that “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.” Paragraph 17(d) states that “the individual has acknowledged the
behavior . . . or taken other positive steps to alleviate stressors, circumstances, or factors that caused untrustworthy,
unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.” Finally, Paragraph 17(e) states
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Guideline E. Considering this, and the entirety of the record, I must conclude that the very
serious concerns raised under Criterion F have not been resolved.
B. Criterion L
The key issue under Criterion L is whether the individual has brought forward sufficient
evidence to demonstrate that he is reliable and trustworthy, and that he is no longer subject to
pressure, coercion, exploitation or duress. For the reasons set forth below, I find that the
individual has not provided sufficient information to resolve the Criterion L concerns at issue.
The DOE’s concerns under Criterion L are that 1) during his 2012 PSI, he admitted that from
2002 through 2007, he violated company policy for an hour each day, when he sent and received
inappropriate e-mails on his company computer, and 2) he admitted that on previous
employment applications he did not list that he was terminated from an employer in 2007 due to
misuse of information technology, but instead listed that he left to pursue better opportunities.
During the hearing, the individual acknowledged that from 2000 to 2007, he received, viewed
and forwarded inappropriate e-mails, thus violating company policy. Tr. at 74. He further
admitted that his behavior was “stupid” and testified that he did not believe he would get caught.
Id. at 77. However, the individual testified that he now regrets this behavior. He admitted that
he made a mistake and asserted that he has not engaged in this sort of behavior since 2007. Id.
The individual testified that he no longer receives inappropriate e-mails from friends and has told
friends not to send the e-mails to him. He testified that he has matured and that he is now a
better person. According to the individual, it took losing his job to realize that his previous
behavior is not something he should do. Id. With respect to his admission that he did not list his
2007 termination on previous employment applications, the individual testified that he
intentionally misrepresented this information on his employment applications because he did not
want to jeopardize his opportunity to obtain a job. Id. at 81. He testified that the last time he
misrepresented an employment application by not listing his 2007 termination was in September
2011. The individual further testified that in the future he intends to be honest. Id. at 85.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
behavior in violating company policy as well as his misrepresentation on his employment
applications are (1) the passage of time, the infrequency of the behavior, or that the behavior
happened under such unusual circumstances that it is unlikely to recur in the future; (2) the
individual has acknowledged the behavior or has taken positive steps to alleviate the factors that
caused untrustworthy, unreliable behavior and such behavior is unlikely to recur and (3) the
individual has taken positive steps to reduce or eliminate vulnerability to exploitation or duress.
that “the individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or
duress.” The Adjudicative Guidelines at Guideline E.
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Adjudicative Guidelines E at ¶ 17 (c) and (d). In this case, the individual has acknowledged his
behavior with respect to receiving, viewing and forwarding inappropriate e-mails in violation of
company policy. He testified that he is remorseful and has not engaged in this behavior since
2007. Due to the passage of time and the individual’s acknowledgement of his behavior, I am
convinced that the individual’s behavior is unlikely to recur. However, with respect to the
individual’s admission that he did not list his 2007 termination on his employment applications, I
find this behavior to be recent. During the hearing, the individual testified that he last
misrepresented information on an employment application in September 2011. Although the
individual has acknowledged this behavior, I am not yet convinced by the individual’s testimony
that he completely understands the importance of being honest. Given that the individual’s
behavior with respect to his dishonesty on his employment applications is relatively recent, I am
not yet convinced that the individual’s behavior is unlikely to recur. After considering the
“whole person,” I am not convinced that the DOE can rely on the individual’s ability to make
sound judgment calls regarding the safeguarding of classified information. See Adjudicative
Guidelines at (2)a. I therefore find that the individual has not sufficiently mitigated the LSO’s
concerns under Criterion L.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Criteria F and L. After
considering all the relevant information, favorable and unfavorable in a comprehensive common-
sense manner, including weighing all the testimony and other evidence presented at the hearing, I
cannot find that the individual has brought forth convincing evidence to mitigate the security
concerns associated with Criteria F and L. I therefore cannot find that granting the individual’s
access authorization would not endanger the common defense and security and would be
consistent with the national interest. Accordingly, I find that the individual’s access
authorization should not be granted. The parties may seek review of this Decision by an Appeal
Panel under the regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Hearing Officer
Officer of Hearings and Appeals
Date: March 5, 2013
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