PSH-12-0139

* 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 30, 2012 ) Case No.: PSH-12-0139
)
____________________________________)
Issued: March 29, 2013
______________________
Hearing Officer Decision
______________________
Richard A. Cronin, Jr, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXX (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.”1 For the reasons set forth below, I conclude that the DOE should not
grant the Individual an access authorization at this time.
I. BACKGROUND
The Individual is an employee of a DOE contractor and has held a security clearance in the past.
Exhibit (Ex.) 20 at 13. The Individual’s employer requested that the Individual be granted a
security clearance. To address concerns related to the Individual’s possible falsification of
answers to several Questionnaires for National Security Positions (QNSP) forms, the Local
Security Office (LSO) summoned the Individual for two interviews (PSIs) with a personnel
security specialist on June 30, 2011 (2011 PSI) and January 11, 2012 (2012 PSI). Ex. 27; Ex. 28.
Additionally, the LSO referred the Individual for an evaluative psychological examination by a
DOE-Contractor psychiatrist (DOE Psychiatrist) regarding his prior admitted alcohol
consumption. Ex. 4. After the 2011 and 2012 PSIs and the psychiatric examination, the LSO
determined that derogatory information existed that cast into doubt the Individual’s eligibility for
access authorization. The LSO informed the Individual of this determination and its decision not
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. Such authorization will be referred to in this Decision as
access authorization or a security clearance.
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to grant the Individual a security clearance (Notification Letter). Ex. 1. 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 an access authorization.
The Individual requested a hearing in this matter. The LSO forwarded this request to OHA, and I
was appointed the Hearing Officer. The DOE introduced 30 exhibits (consisting of 678 pages)
into the record of this proceeding (Exs. 1-30) and the testimony of the DOE Psychiatrist. See
Transcript of Hearing, Case No. PSH-12-0139 (hereinafter cited as “Tr”). The Individual
testified on his own behalf and submitted six exhibits (Exs. A-F).
II. FACTUAL FINDINGS AND THE
ASSOCIATED SECURITY CONCERNS
The Part 710 regulations require that I “make specific findings based upon the record as to the
validity of each of the allegations” in the Notification Letter. 10 C.F.R. § 710.27(c). In this case, the
Notification Letter cites paragraphs (f), (h), (j) 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 (Criteria F, H, J, and L,
respectively). Ex 1. I address below the validity of the allegations set forth in the Notification
Letter in support of the cited criteria. The Individual does not essentially dispute the factual
accuracy of the derogatory information described in the Notification Letter. My factual findings
regarding the derogatory information described in the Notification Letter are presented below.
A. Criterion F
In 1974, local police arrested the Individual for Careless and Imprudent Driving. Ex. 26. Local
police arrested the Individual in 1975 for speeding. Ex. 17 at 4. Pursuant to an investigation, the
Individual completed a Personnel Security Questionnaire (PSQ) in December 1980 (12/1980
QSP) indicating that he had only been arrested once in 1974 for Careless and Imprudent Driving.
Ex. 26.
In 1985, the Individual was arrested for Driving Under the Influence. Ex. 27 at 79-80, 167-75. In
2005, the Individual completed a QNSP (2005 QNSP) affirming that he had never been charged
with any offenses related to alcohol or drugs. Ex. 22 at 7.
Beginning in 2002 through 2010, the Individual failed to file federal and state income tax
returns. Ex. 27 at 7-20, 111-14; Ex. 28 at 16-31. Local police arrested the Individual in January
2006 on a bench warrant concerning citation for city code violations. Ex. 27 at 86-103. In 2009,
the Internal Revenue Service (IRS) obtained a judgment against the Individual for unpaid income
taxes. In 2010, the IRS placed a lien against the Individual for $8,349 in unpaid income taxes.
Ex. 13. In 2010, the Individual’s overdue account for medical services went into collection.2 Ex.
6 at 4.
2 A credit report indicates that the amount owed on this account was $548. At the 2012 PSI, the Individual stated
that he owed approximately $1200. The Notification Letter reference another medical account placed in collection
for $5. Because of the de minimus nature of the amount owed in this $5 collection account, I will not consider it in
making my decision regarding the Individual’s security clearance.
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In March 2011, the Individual completed another QNSP (3/2011 QNSP) where he denied: (1)
ever being charged or convicted of an offense related to alcohol or drugs; (2) being arrested by a
law enforcement officer in the past seven years; (3) ever having a lien entered against him; and
(4) ever failing to file or pay federal or state taxes. The Individual completed another QNSP in
December 2011 (12/2011 QNSP). Ex. 20. In the 12/2011 QNSP, the Individual denied: (1) that
he had any financial accounts go into collection; (2) that he had been arrested by a law
enforcement officer in the prior seven years; (3) that he had a judgment entered against him; and
(4) that he had a lien placed against him for failure to pay taxes. Ex. 20.
The security concern associated with Criterion F is that “[c]onduct 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. Of special interest is any failure to provide truthful and candid answers during 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) (Adjudicative Guidelines), Guideline E at ¶ 15.
Given the misleading and inaccurate answers given in the 12/1980 PSQ, 2005 QNSP, 03/2011
QNSP, and the 12/2011 QNSP, the LSO had sufficient grounds to invoke Criterion F.
B. Criteria H and J
In August 1985, the Individual was arrested for Driving Under the Influence. Ex. 27 at 79-80;
Ex. 4 at 4-5. During the DOE Psychiatrist’s examination in March 2012, the Individual admitted
to being a “borderline alcoholic thirty years ago” and consuming alcohol to the point of
intoxication on a weekly basis while serving in the military. Ex. 4 at 5. The Individual stated that
his excessive alcohol consumption lasted until his 1985 DUI arrest. Ex. 4 at 5. The Individual
also admitted during the interview that, in 1987, his personal physician advised him to stop
consuming alcohol yet the Individual declined to do so.3 Ex. 4 at 9. After examining the
Individual, the DOE Psychological diagnosed the Individual as suffering from Alcohol Abuse in
Early Partial Remission, a condition that could cause a significant defect in judgment and
reliability. Ex. 4 at 10. In his evaluative report, the DOE Psychiatrist cited the Individual’s past
alcohol consumption patterns and his recent history of consuming alcohol to excess once or
twice in 2011 as facts supporting his diagnosis. Ex. 4 at 9. Additionally, the DOE Psychiatrist
cited the fact that the Individual admitted going to work with a hangover, consuming more
alcohol than intended, and the Individual’s implication during the interview that he experienced
increased problems with his wife when he consumed alcohol as additional factors supporting his
diagnosis. Ex. 4 at 9. The DOE Psychiatrist recommended that in order for the Individual to
demonstrate adequate evidence of rehabilitation the Individual should be abstinent for two years
and participate in either an Alcoholics Anonymous (AA) program or a professionally-led
substance abuse treatment program. Ex. 4 at 10.
Criterion H refers to “[a]n illness or mental condition of a nature which, in the opinion of a
psychiatrist or licensed clinical psychologist, causes or may cause, a significant defect in
judgment or reliability.” 10 C.F.R. § 710.8(h). Criterion J references information indicating that
3 The Notification Letter reports that this incident occurred in 2007. Ex. 1 at 3.
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an individual has “[b]een, 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). Excessive alcohol consumption raises a security concern because it
can lead to questionable judgment and the failure to control impulses, which in turn can raise
questions about a person’s reliability and trustworthiness. See Adjudicative Guidelines, Guideline
G; Personnel Security Hearing, Case No. TSO-0927 (2010). Given the DOE Psychiatrist’s
opinion indicating that the Individual suffers from Alcohol Abuse in Early Partial Remission, a
disorder that could cause a significant defect in judgment or reliability, the LSO had sufficient
grounds to invoke Criteria H and J.
C. Criterion L
The Individual has been cited or arrested on a number of occasions, listed below:
Date Charge
April 1973 Speeding
March 1974 Careless and Imprudent/Heedless Driving
February 1975 Speeding (two separate offenses)
October 1979 Speeding
December 1981 Speeding
January 1982 Speeding
June 1985 Signal Light Violation
August 1985 Driving Under the Influence (DUI) and Speeding, City Sticker
Violation
March 1998 City Code Violation
September 2001 Parking a Vehicle on an Unapproved Surface (PVU)
February 2002 Zoning Violation
January 2003 Inoperative Registration of a Vehicle
November 2003 Inoperative Registration of a Vehicle; Zoning Violation; PVU
September 2005 PVU
January 2006 Outstanding Bench Warrant for City Code Violations
March 2007 Improper Display of Plates; Child Restraint Violation
November 2009 PVU
Tr. at 106; Ex. 4 at 4; Ex. 21; Ex. 23; Ex. 24; Ex. 25; Ex. 26 at 86-104; Ex. 27 at 75-80, 81,-86,
167-78; Ex. 28 at 88-93; Ex. 30 at 7, 23.
As noted above, the Individual did not filed federal or state income tax returns for the years 2002
through 2010. Ex. 27 at 7-20; Ex. 26 at 16-31; Ex. 4 at 5. The Individual has also experienced a
number of financial difficulties and these are listed below:
Date Financial Problem/Concern
1989 Home foreclosed upon
January 1989 Default judgment for a delinquent debt of $2,948
January 1989 Default judgment for a delinquent debt of $2,030
March 1989 Filed for and granted Chapter 7 bankruptcy
December 2001 Filed for and granted Chapter 13 bankruptcy protection
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October 2009 Filed for Chapter 13 bankruptcy protection4
March 2010 Home foreclosed upon
March 2010 Internal Revenue Service file a tax lien of $8,349 against
the Individual
.
Ex. 3 at 4; Exs. 6-9; Ex. 13; Exs. 18-19; Ex. 26 at 8, 16, 19-21, 27, 30-31, 39-40, 41-43, 44-58, 66,
69, 79-82, 106-07, 109-10; Ex. 27 at 39, 45-50; Ex. 28 at 12-14; Ex. 29 at 21.
The Individual, in a PSI conducted in August 2006 (8/2006 PSI), stated that he was current with his
federal and state income tax fillings. Ex. 29 at 19. Nonetheless, the Individual has not filed federal or
state income tax returns from 2002 through 2010. Despite his signing a Certification To Provide
Information (CTPI) form in June 2011 certifying that he would furnish his estimated tax filing dates
and information as to his efforts to work with a tax professional, the Individual failed to provide the
requested information. Ex. 27 at 20-24, 39-40; Ex. 26 at 26, 28-30, 117-19. The Individual also failed
to report either the 1989 or the 2009 bankruptcy to the LSO as required of clearance holders. Ex. 26
at 72-74, 84; Ex. 29 at 7-17. Further, during the 2011 PSI, the Individual stated “when it comes to
here, I don’t bring a lot of my personal life in here ‘cause there’s people in here that’s, they live for
that . . .” (Comment Incident) Ex. 28 at 76. During this PSI, the Individual admitted to
procrastinating on financial issues and “putting his head in the sand” regarding his federal and state
tax situation. Ex. 28 at 20. The Individual also admitted to periods of spending compulsively and
unnecessarily. Ex. 28 at 63, 66.
In the 2012 PSI, the Individual stated that he felt no obligation to repay the $12,417 debt remaining
from a 2010 home foreclosure because the bank foreclosed on his house. Ex. 27 at 47. He also stated
that he did not intend to pay the medical account debt in collection. Ex. 27 at 51-58. The Individual
also acknowledged that he has a current debt of $598 with another financial account. Ex. 27 at 68-69.
Criterion L concerns conduct tending to show that the Individual was “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). 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. Of special interest is any failure to provide truthful and candid answers during the
security clearance process. See Adjudicative Guidelines, Guideline E, ¶¶ 15, 16(a); see also, e.g.,
Personnel Security Hearing, Case No. PSH-12-0053 (August 3, 2012). In light of the
Individual’s history of numerous citations and arrests, financial problems, failure to file tax
returns, and his apparent failure to answer accurately a question regarding his tax status in the
8/2006 PSI, I find that the LSO properly invoked Criterion L.
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
4 The Individual’s bankruptcy petition was rejected by the court after 90 days for failure to supply needed
information. As described below, this filing was part of a plan to allow the Individual’s agent to renegotiate his debts
and save his house. The Individual did not intend to go forward with the bankruptcy. Tr. at 117.
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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 and unfavorable, that has a bearing on the question of whether granting the Individual
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). In considering
these factors, the Hearing Officer also consults the Adjudicative Guidelines that set forth a more
comprehensive listing of relevant factors.
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). 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. ANALYSIS
For the reasons below, I find that while the Individual has resolved security concerns under
Criteria H and J, the Individual has failed to resolve the security concerns raised by the Criteria F
and L derogatory information.
A. Criterion F
In his testimony, the Individual stated that the apparent inconsistencies cited as Criterion F were
not an attempt to hide unfavorable information from the LSO. Tr. at 50, 67. The Individual
testified that with regard to his failure to report the tax lien against his house in the 3/2011
QNSP, he did not discover the lien, or the IRS judgment against him until he lost his house in
foreclosure. Tr. at 49-51, 61-64. As for his failure to report his arrests in the 3/2011 QNSP, the
Individual testified that he believed that he was required to report arrests and citations only if
there was a fine associated with the arrest. Tr. at 54; see Tr. at 64. He also testified that he did
not list the medical account in collection because the debt arose from a medical expense and
there was a dispute between two insurance companies as to which was responsible for payment.
Because he believed that the insurance companies resolved the issue, he did not believe that he
owed anything on the account. Tr. at 54-55. With regard to his answers in the 3/2011 QNSP
stating that he had filed federal and state tax returns, the Individual testified that he was still “in
denial” regarding the need for him to address his tax situation and that he had a “head-in-the-
sand” attitude about such issues. Tr. at 58.
The Individual testified that he did report the information described above in the 12/2011 QNSP
but that the information “disappeared” when he electronically filed the form. Tr. at 63-64. The
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Individual admitted that he should have paid more attention to the 12/2011 QNSP but that he was
“so frustrated with [the] system and trying to get [the information] in there,” he electronically
signed the 12/2011 QNSP “just to get [it] over with.” Tr. at 64. The Individual did not report his
arrests in the 12/2011 QNSP for the same reason he did not report the arrests in the 3/2011
QNSP – he thought there had to be an associated fine with the arrest in order to make it a
reportable arrest for QNSP purposes. Tr. at 64-65.
The Individual testified that he did not report his 1985 DUI arrest in the May 2005 QNSP
because he misread the question regarding reporting alcohol- and drug-related arrests as asking
only for such arrests during the prior seven years. Tr. at 65. Because the arrest was over 10 years
old, he did not report the arrest. Tr. at 65. In subsequent QNSPs he reported the DUI arrest. Tr. at
66. As for his failure to report a citation for speeding in a 12/1980 QSP, the Individual did not
report the citation because he only received a small fine. Tr. at 66.
My review of the evidence and testimony leads me to conclude that a number, but not all, of the
Criterion F concerns raised by the derogatory information have been resolved. The 12/1980 QSP
and 2005 QNSP apparent falsifications occurred a number of years ago and because of their age I
find that the concerns raised by these incidents have been resolved. Further, I find that the
Individual’s explanation as to why he did not believe that the medical account was in collection
to be convincing in light of his documentary evidence indicating that there was a dispute
regarding this billing of the account.5 Exs. B-F.
However, the Individual has failed to produce sufficient evidence to convince me that his failure
to report his tax filing status in the 3/2011 QNSP was not a deliberate misrepresentation. The
Individual’s explanation that he was in denial about his failure to file taxes is unconvincing given
the fact that by the date of the 3/2011 QNSP he had failed to file tax returns for approximately
eight years. Further, in the absence of additional evidence, I also find unconvincing the
Individual’s explanation that he had no knowledge of the IRS judgment or lien against his
residence until he lost his house.
I also find that the Individual has failed to present sufficient evidence to support his claim that
he, in fact, reported the information in question in the 12/2011 QNSP but that the information
was lost due to an error in the electronic QNSP software.6 The Individual did not testify that he
sought help in completing the electronic QNSP or tried to contact the LSO regarding his
difficulties. Most significantly, an examination of the completed 12/2011 QNSP indicates that
the Individual checked “No” with regard to the questions relating to accounts in collection, being
arrested in the past seven years, judgments entered against him, and liens filed against him for
delinquent taxes. Ex. 20 at 13, 16.
Considering the entirety of the record, I must conclude that the very serious concerns raised
under the Criterion F derogatory information have not been resolved.
5 The Individual has now paid off this account. Ex. F.
6 The Notification Letter does not allege that the Individual failed to reveal his tax filing status in the December 2011
QNSP. See Tr. at 62.
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B. Criteria H and J
The Individual testified that, in the past 15 years, he has not had an alcohol problem. Tr. at 33-
34. The Individual dealt with his alcohol problem a long time ago and has not undertaken any
type of treatment program. Tr. at 13-14. To relieve stress which might cause him to engage in
excessive consumption of alcohol, the Individual will take a 30- or 45-minute ride on his
motorcycle. Tr. at 15. The Individual realizes that if he were to get into difficulty regarding his
alcohol consumption, he would most likely lose his security clearance. Tr. at 15.
Upon questioning by the DOE Psychiatrist, the Individual testified that he has not consumed
alcohol for the five months prior to the hearing and does not plan to resume drinking alcohol
again. Tr. at 17, 23. The last time the Individual was intoxicated was in October 2011 when he
consumed five beers with his brother. Tr. at 31-32. Since October 2011, the Individual has
consumed alcohol on three different occasions where he consumed no more than two beers. Tr.
at 35-36. During his current abstinence, the Individual has attended a number of social events but
did not consume alcohol on these occasions. Tr. at 23. The Individual has not been inside a bar
for the past several years. Tr. at 25. The Individual did not go to AA meetings, as recommended
in the Psychiatrist report’s because of the advice he received from friends who had been
diagnosed as alcohol dependent and had participated in AA. His friends advised the Individual
that he did not have a problem requiring participation in AA. Tr. at 19-20. However, one friend
advised him that if the Individual thought he was having difficulty with alcohol, he could contact
him. Tr. at 20-21.
The Individual testified that he currently takes care of his mother-in-law. Tr. at 26. His mother-
in-law suffered from alcoholism and the Individual and his family removed all of the alcohol
from the house to help her get over her alcoholism by going “cold-turkey.” Tr. at 26-27.
The DOE Psychiatrist testified that most of the Individual’s problems with alcohol occurred in
the past and that the last time the Individual qualified for a diagnosis of Alcohol Abuse was in
the early 2000s. Tr. at 39. Nonetheless, the DOE Psychiatrist testified that, in his opinion, a
diagnosis of “Alcohol Abuse” lasts forever. Tr. at 39.
The DOE Psychiatrist found that the Individual’s testimony regarding his alcohol consumption
since October 2011 was convincing and that he had a “substantial level of confidence” that the
Individual was telling the truth with regard to his alcohol consumption. Tr. at 41. The DOE
Psychiatrist found it significant that the Individual has been to social settings with alcohol and
did not consume alcohol on those occasions. Tr. at 41. Additionally, the DOE Psychiatrist was
impressed by the Individual’s efforts regarding his mother-in-law’s alcoholism. Tr. at 41. Given
these facts, the DOE Psychiatrist concluded that the Individual has a “very good chance of
avoiding future episodes of intoxication” and that the chance that the Individual would become
intoxicated in the future was low. Tr. at 41-43.
In evaluating the evidence before me, I take note that OHA Hearing Officers generally accord
deference to the opinion of mental health professionals regarding the issue of rehabilitation and
reformation, see, e.g., Personnel Security Hearing, Case No. PSH-11-0003 (2012). The evidence
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before me indicates that the Individual has not had any alcohol-related arrests since 1985.
Further, there is no evidence before me that the Individual has been intoxicated since 2011
despite being in social events where alcohol was available. Most importantly, the DOE
Psychiatrist has testified as to his findings that the Individual is now not likely to become
intoxicated in the future. Given the evidence before me, I find that the Individual has resolved
the security concerns raised by the Criterion H and J derogatory information.
C. Criterion L
The Criterion L information listed in the Notification Letter falls into several categories: the
Individual’s failure to file taxes; the Individual’s financial difficulties; the Individual’s apparent
disregard for the law as evidenced by his many citations and arrests; and other alleged
information reflecting poorly on the Individual’s honesty, trustworthiness and willingness to
comply with rules and regulations.
I find that the Individual has resolved one of the Criterion L concerns. With regard to the
Comment Incident described above, the Individual testified that his remark was misinterpreted.
Tr. at 112. The idea he meant to communicate was that he was not going to tell co-workers
details concerning his personal life. Tr. at 113. In reviewing the 3/2011 PSI, the Individual
stated that “when it comes to in here, I don't bring a lot of my personal life in here 'cause there's
people in here that's, they live for that. They love to spread rumors.” Ex. 28 at 76. There is no
indication that the Individual, in using the word “here,” meant the LSO as opposed to his co-
workers or that the Individual meant to state that he would not be forthcoming with LSO
officials’ questions. Thus, I find that this allegation has been resolved. However, I find that the
Individual has failed to resolve the concerns raised by the remaining Criterion L information.
1. Failure to File Taxes
The Individual testified that he has now employed a firm to represent him before the IRS and his
representative was to meet with IRS officials several weeks after the hearing to resolve the
Individual’s tax problems. Tr. at 68; see Ex. A (E-mail and Individual’s contract for tax
representation services). The Individual admitted that he has made some bad choices concerning
his taxes but now asserts that he has changed his attitude and is actively trying to resolve his tax
situation. Tr. at 70-71. To enable him and his family to begin paying the tax liabilities he may
have incurred, the Individual and his wife made a budget eight months ago and have been paying
off their credit cards and other outstanding debts. Tr. at 73, 87. The Individual is building a
cushion regarding his income and expenses in order to make monthly tax payments. Once he has
resolved his federal tax situation, the Individual will address his state tax issues including a
$4,800 state tax lien. Tr. at 88-89.
I find that the Individual’s failure to file tax returns represents a serious incident of poor
judgment and reliability and a significant failure to comply with law. The extent of the
Individual’s failure to file stretches back for eight years and the Individual has only recently
begun to remedy his tax issues. The exact amount of the Individual’s tax liability has not yet
been established and he has not yet begun a plan to pay off his back taxes. Absent a longer
period where the Individual demonstrates compliance with his legal and financial
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responsibilities, I cannot find, as of the date of the hearing, that the Criterion L concerns arising
from his failure to file tax returns have been resolved. See Personnel Security Hearing, Case No.
PSH-12-0044 (2012) (individual’s recent repeated failure to comply with the law by filing tax
returns requires non-restoration of clearance).
2. Financial Difficulties
The Individual testified that the 1989 bankruptcy resulted from the cumulative effect of having a
number of family members living in his family home. Tr. at 101. The 2001 bankruptcy was
caused by the downgrading of his employment with an associated loss of income. Tr. at 101. In
2002 or 2003, the Individual had 12 family members living in his home. Tr. at 74. His financial
condition was made worse by his decision to refinance his house just before the housing market
collapsed. Tr. at 76. This situation was compounded by the Individual’s participation in a “loan
recovery scam.” Tr. at 76, 117-18; see n.6.
The Individual has an extensive history of financial instability as indicated by two bankruptcy
discharges and the foreclosure of two homes. Even accepting that the Individual experienced
extra financial strain by having family members living with him, the Individual has shown an
extended period of failure to live within his means such that he has been unable or unwilling to
file tax returns. See Ex. 28 at 31-32 (Individual’s admission that he needs in the future to restrict
the number of family members living with him in order to control his expenses). In the 2011 PSI,
the Individual admitted that he has a habit of procrastination with regard to his tax obligations
and has spent money compulsively and made bad financial decisions. Ex. 28 at 63 (Individual’s
admission that he has a problem with compulsive spending), 66 (occasional periods of spending
unnecessarily). As of the date of the 2011 PSI, the Individual admitted that his then financial
situation was “barely livin’ within my means.” Ex. 28 at 66. I do find that the Individual has
made the first steps in becoming financially responsible and is trying to resolve his tax situation
and to budget his spending. While the Individual’s two bankruptcies occurred a number of years
ago, the Individual still faces financial challenges ahead since his tax liability, as of the date of
the hearing, has not been determined. The Individual’s history of financial problems is of long
duration and his actions to reform his financial habits began relatively recently, eight months
ago. Consequently, I find that the Individual has not resolved the Criterion L security concerns
raised by his history of financial problems.
3. History of Arrests and Citations
The Individual testified during the hearing that many of the citations cited in the Notification
Letter were a result of his failure to comply with zoning regulations with regard to his
remodeling of the house. Tr. at 105. Many of these citations were a result of what the Individual
described as an “overzealous” code enforcement officer. Tr. at 109. Other arrests such as
improper display of plates and a child restraint violation were the result of the Individual’s bad
judgment in not knowing that the plates in his daughter’s car had expired or his failure to notice
that his grandchildren had gotten out of their car seats. Tr. at 109.
The majority of the Individual’s arrests and citations do not reflect serious violations of the law.
The most serious of these violations, speeding, occurred some twenty years ago. However, the
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sheer number of citations and arrests and specifically the Individual’s history of citation for code
violations (for home repair and renovation projects) raise serious questions as to the Individual’s
judgment. I found it significant that the Individual, in regard to the code violations, testified “we
ended up basically going to war, me and the city. I feel I was being persecuted at the time.” Tr. at
109. This attitude raises questions as to the Individual’s willingness to follow regulations. When
asked if he could have resolved the issues with the code enforcement officer, the Individual
responded “I really don't know if I could have made a resolution with that officer at that time,
because [the locality] had went through a period of time there that the code enforcement was a
money-generating thing that they were pounding everybody on.” Tr. at 110. Further, the number
of code citations (and other citations) reflects a sustained period of non-compliance with the law.
Given the evidence before me, I cannot conclude that the Individual has produced sufficient
evidence to resolve the concerns raised by his extensive history of arrests and citations.
4. Other Criterion L Information
With regard his to failure to report the 2001 bankruptcy, the Individual testified that he did not
believe that he needed to report the bankruptcy filing because he had disclosed it in a previous
personnel security questionnaire. Tr. at 119-20. The Individual testified that his false answer in
the 2006 PSI regarding his current tax fillings were a result of his “head in the sand” mindset. Tr.
at 118-19. As for his failure to report his 2009 bankruptcy filing, the Individual testified his
bankruptcy filing was not meant to be a real bankruptcy process but rather a method to stop his
creditors from pressing for repayment while an agent negotiated the debts. Tr. at 117; see n.6.
The Individual also testified that he did not return the CTPI form because he had difficulty
getting the required information and that he did not have any contact information for the
interviewer who gave him the form. Tr. at 123-24.
With regard to these incidents, I find that the Individual’s explanations do not resolve the
security concerns. The Individual’s explanation regarding his failure to report the 2001
bankruptcy, that he had previously reported the bankruptcy in a prior QSP, is not supported by
any evidence before me. The Individual’s assertion in the 2006 PSI that he was current with his
federal and state tax filings was plainly false. Ex. 29 at 18. The excuse that the Individual did
not want to address his tax problems and may have been in denial does not mitigate his duty to
answer accurately questions posed to him during the reinvestigation process regarding his
security clearance. The Individual’s failure to report the 2009 bankruptcy filing is not resolved
by his explanation that he did not intend to complete the bankruptcy process. The Individual has
failed to cite any evidence supporting his belief that he did not have to report the filing if he did
not intend to formally accept bankruptcy relief. Even he had had this subjective belief, the
Individual exercised poor judgment in not confirming his understanding of the reporting
requirements. The Individual’s explanation as to why he did not return the CTPI form is also
unconvincing. While the Individual may have had difficulty in obtaining information concerning
his financial situation and may not have been given direct contact information with his PSI
interviewer, he did have the address to mail the form and thus could have easily sent a note to
that address informing officials as to his problems or could have contacted the LSO directly. This
incident reflects a significant lack effort to try to comply with rules and regulations and thus
represents a serious failure of reliability and judgment.
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Overall, the Individual has not resolved the concerns raised by the Criterion L derogatory
information recorded in the Notification Letter.
V. CONCLUSION
For the reasons set forth above, I conclude that the Individual has not resolved the DOE’s
security concerns under Criteria F and L. Therefore, 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. Accordingly, I find that the DOE should not grant
the Individual an access authorization at this time. Review of this decision by an Appeal Panel is
available under the procedures set forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: March 29, 2013