PSH-12-0142

* 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: December 19, 2012 ) Case No.: PSH-12-0142
)
_________________________________________ )
Issued: March 22, 2013
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxx (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 restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In June 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 pattern of criminal conduct. On August 23, 2012, the LSO sent a
letter (Notification Letter) advising the individual that it possessed reliable information that
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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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 one potentially disqualifying criterion set forth in the security regulations
at 10 C.F.R. § 710.8, subsections (l) (hereinafter referred to as Criterion L).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. The DOE counsel did not present any
witnesses. Both the DOE and the individual 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
restoring 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
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
2
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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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 one potentially disqualifying criterion as the basis for
suspending the individual’s security clearance, Criterion L. To support its reliance on Criterion
L, the LSO alleges that, in May 2012, the individual was arrested after he was involved in a
physical altercation with his wife. In June 2012, the individual was formally charged with felony
Battery (Domestic Violence)-Strangulation. The LSO also alleges that during a June 2012 PSI,
the individual admitted that prior to his arrest for Battery in May 2012, he and his wife were
involved in a physical altercation. Furthermore, the LSO alleges that the individual has a history
of criminal conduct including Disorderly Conduct in 2000 and a number of speeding citations
from 2003 to 2010. The individual’s unwillingness to abide by rules and regulations as well as
his vulnerability to blackmail, exploitation, and duress call into question the individual’s
judgment, reliability, trustworthiness and his ability to protect classified information. 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).
IV. Findings of Fact
On May 16, 2012, the individual and his wife were involved in a physical altercation. According
to incident reports received by the LSO on May 17 and May 24, 2012, the individual’s wife
pushed him, he grabbed her arms and they both fell to the ground. DOE Exh. 3. When on the
ground, the individual held an arm against his wife’s body and he threw his step-son off of him
when he tried to intervene. Id. Based on statements provided by the individual’s wife, her son
and marks of physical abuse on the individual’s wife, the individual was determined to be the
aggressor and was arrested. Id. He was formally charged with Battery (Domestic Violence)-
Strangulation on June 5, 2012. Id. This information prompted a PSI of the individual in June
2012. During the PSI, the individual confirmed that he did restrain his spouse and throw his
step-son off of his back when he tried to intervene. Id. He also confirmed that a restraining
order was placed against him for one year as a result of the arrest. Id.
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During the June 2012 PSI, the individual also admitted to a number of speeding citations and
incidents of criminal conduct. Id. On August 12, 2000, the individual was charged with
Disorderly conduct after throwing a roll of toilet paper onto a playing field while attending a
soccer game. Id. He admitted to receiving two citations in 2003 while stationed at a military
base. One citation was for speeding and the other was for a Red Light Violation. Id. The
individual was issued another speeding citation in October 2006. In November 2006, he was
also issued a warrant for his arrest for an unpaid citation for Failure to Yield. The individual
received two more speeding citations in 2007. Id. With regard to his second citation in 2007,
the individual was delinquent in paying the penalty assessment and a warrant was issued for his
arrest. Finally, the individual was issued citation for speeding in March 2008 and July 2010. Id.
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 restored. I cannot find
that restoring 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.
Criterion L
The DOE’s concerns under Criterion L are 1) the individual’s May 2012 arrest and formal
charge of felony Battery (Domestic Violence) - Strangulation, and 2) the individual’s history of
criminal conduct, including numerous citations for speeding.
During the hearing, the individual, who is now divorced, testified about his May 2012 arrest for
felony Battery. He testified and provided documentary evidence that the restraining order issued
at the request of his wife as a result of the 2012 arrest was dissolved on December 20, 2012.
Transcript of Hearing (Tr.) at 11. The individual further testified that on December 14, 2012, he
negotiated with the State regarding his felony charge and entered a “No Contest” plea to a
Disorderly Conduct charge. According to the individual, in exchange for the No Contest plea
and the satisfaction of a number of requirements, including 48 hours of community service and
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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26 hours of anger-management counseling program, the State will not proceed with any domestic
charges against the individual and the case will be closed with only the Disorderly Conduct
charge on his record. Id. at 12., Indiv. Exhs. A and D. In addition, the individual will not be
required to serve a term of incarceration as part of this sentence. The individual testified that as
of the date of the hearing, he has completed 20 hours of community service. The individual, who
provided a written statement to the LSO after his arrest, denies the allegation that led to his arrest
and testified that, although he takes some responsibility for the incident, he was defending
himself during the altercation with his ex- wife. Indiv. Exh. B, Tr. at 13 and 17. He testified
that he entered into a negotiation with the State based on the advice of his lawyer, who opined
that it would be too “risky” to go to trial. Id. at 14. The individual is now attending anger-
management counseling. Id. at 46. He believes the counseling has been helpful and has given
him insight on how to handle stressful situations. The individual testified that he expects to
complete his anger-management classes in about four months. Id. at 30.
With respect to the incidents of criminal conduct cited by the LSO, including the individual’s
numerous citations for speeding, the individual readily acknowledged all of the incidents. He
testified that a number of his speeding citations occurred because he had a long (45-minute)
commute to work and he was travelling a long stretch of a two-lane highway with very little
traffic. Id. at 34. The individual explained that he was not accustomed to driving on the
highway and did not realize how fast he was going. Id. at 24. He testified that he is now better
able to control his speed and has not received a speeding citation since July 2010. Id. at 34. The
individual also testified that he understands the importance of following rules and regulations.
He further stated that his future intentions are to continue to control his speed and to abide by the
rules. Id. at 36. Finally, the individual testified that he is a reliable, honest and trustworthy
person. Id. at 46.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
criminal conduct 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.
Adjudicative Guidelines E at ¶ 17 (c), (d) and (e).
With respect to the individual’s May 2012 arrest for felony Battery, I find that although the
individual asserts that he was defending himself during this incident and entered a “No Contest”
plea to a charge of Disorderly Conduct, the incident is relatively recent. In addition, he has not
yet completed all of the requirements of his sentence for the Disorderly Conduct charge, i.e., the
remainder of the 48 hours of community service and the 26 hours of anger-management
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counseling. The recency of the arrest, coupled with the yet to be completed terms of his plea
bargain, prevent me from finding mitigation regarding the individual’s May 2012 arrest.
As for the numerous speeding violations occurring from 2003 to 2010 as well as the individual’s
2000 charge for Disorderly Conduct, the individual has acknowledged these incidents. He
testified that he has adjusted his behavior and understands the importance of complying with the
law. He has not received a speeding citation since 2010. Due to the passage of time and the
individual’s acknowledgement of his behavior, I am convinced that the individual’s behavior
with respect to following rules and regulations is unlikely to recur. Therefore, I find that he has
mitigated the security concerns associated with these incidents of criminal conduct. As set forth
above, however, because the individual has not mitigated all of the security concerns associated
with his past criminal conduct, I find that the individual’s access authorization should not be
restored.
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 Criterion 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 Criterion L. I therefore cannot find that restoring 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 restored. 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 22, 2013