PSH-12-0144

* 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 31, 2012 )
) Case No.: PSH-12-0144
__________________________________________)
Issued: June 10, 2013
_______________
Hearing Officer Decision
_______________
Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXX XXXXXXX (hereinafter referred to as "the
Individual") to maintain a security clearance 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.” For the reasons set forth below, I conclude that the Individual’s
security clearance should not be restored.
I. BACKGROUND
On July 31, 2012, the Individual reported to a Local Security Office (LSO) that he had been
arrested on July 16, 2013, and charged with two counts of “First Degree Criminal Sexual
Penetration of a Minor” and two counts of “Criminal Sexual Contact of a Minor.” Exhibit 6
at 5; Exhibit 9 at 10. The LSO conducted a Personnel Security Interview (PSI) of the Individual
on August 27, 2012, and then referred him to a DOE Psychologist who diagnosed the Individual
as suffering from Personality Disorder Not Otherwise Specified (PDNOS).
Unable to resolve the security concerns raised by the criminal charges, the conduct underlying
these charges, and the PDNOS diagnosis, the LSO initiated administrative review proceedings by
issuing a letter (Notification Letter) advising the Individual that it possessed reliable information
that created a substantial doubt regarding his eligibility to hold a security clearance. In the
Notification Letter, the LSO set forth the derogatory information at issue and advised that the
derogatory information fell within the purview of potentially disqualifying criteria set forth in the
security regulations at 10 C.F.R. § 710.8, subsections (h) and (l) (Criterion H and Criterion L,
2
respectively).1
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt regarding his eligibility for access authorization.
The Individual requested a hearing, and the LSO forwarded his request to the Office of Hearings
and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in this matter
on January 3, 2013.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his present treating psychologist (the Treating Psychologist), his former treating
psychologist (the Former Treating Psychologist), a psychiatrist hired as a consultant by his legal
representative (the Psychiatrist) his estranged spouse (the Spouse), his criminal defense attorney,
a polygraph technician, and the DOE Psychologist (the DOE Psychologist). See Transcript of
Hearing, Case No. PSH-12-0144 (hereinafter cited as “Tr.”). The LSO submitted nine exhibits,
marked as Exhibits 1 through 9. The Individual submitted 18 exhibits, marked as Exhibits A
through R.
II. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency
and the Individual and to render a decision based on that evidence. See 10 C.F.R. § 710.27(a).
The regulations state that “[t]he decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all relevant information, favorable or
unfavorable, as to whether the granting or continuation of 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 have considered the following factors in rendering this decision: the nature, extent,
and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R.
§§ 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
III. FACTUAL BACKGROUND
The Individual is the father of two young boys, who were 6 and 8 years of age at the time of the
incidents discussed below. The older boy (Victim One) was having academic difficulties and, in
April 2012, began seeing a counselor (the Counselor) recommended by his pediatrician. On
1 The Notification Letter alleges that the Individual has: (1) “An 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); and (2) “[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).
3
June 30, 2012, Victim One and the younger boy (Victim Two) tickled each other’s genitals in the
presence of their mother and the Counselor. Tr. at 21; Exhibit 6 at 6. The Counselor then spoke
to Victim One in private. The Spouse subsequently observed the Counselor asking Victim One:
“did your dad touch you?” Tr. at 24. Victim One responded by stating “yes.”2 Id. The
Counselor, as required by law, contacted the local child protection authorities and reported her
concerns.3
On July 5, 2012, the child protection authorities informed the police of the Counselor’s
allegations and placed the Spouse and two sons in a safehouse. On that day, a police detective
(the detective), a forensic interviewer, and a child protection caseworker met with the
Individual’s wife and two sons at the safehouse and interviewed both boys. Exhibit 6 at 14. The
interviews of both boys were audio-visually recorded and the resulting record is hereinafter
referenced as the “Safehouse Tape” (although it was actually recorded onto a DVD disk).4 Id.
During the safehouse interview, Victim One stated that the Individual “touches my private
parts.” Exhibit 6 at 14. Victim One further stated that when the Individual touches Victim One’s
genitals and bottom, he does so with his hand and it tickles. Id. Victim One stated that when
this happens, the Individual is “really happy.” Id. Victim One made a tickling motion with his
hand to try and show what his father was doing at the time. Id. The Incident/Investigation report
prepared by the detective (the Police Report) states that Victim One then “looked down toward
his penis and then grabbed it quickly over his clothing.” Id. Victim One reported that the
Individual touches his brother’s genitals and bottom too. Id. at 15.
Victim Two also reported that the Individual touches his genitals and bottom. Exhibit 6 at 16.
Victim Two also reported that his brother, Victim One, touches his genitals. Id. Both Victim
One and Victim Two reported that when the Individual touches their bottoms, it is on “the
inside.” Id.
At the conclusion of the safehouse interviews, the victims’ mother, the Spouse, was interviewed.
Exhibit 16 at 16. The Police Report states, in pertinent part, that:
She does believe [the children] and is pursuing a divorce and a restraining order5
while [the Individual was on travel]. . . . [She] admitted that she has been very
concerned about the boys touching themselves and each other since they were 4
2 The Counselor then asked Victim Two the same question, but Victim Two did not answer. Tr. at 24.
3 The Counselor apparently submitted a written report to the child protection authorities. This report does not appear
in the record. However, it is referenced in both the Affidavit for Arrest Warrant and the Incident/Investigation
Report prepared by the detective.
4 The only record of the safehouse interviews of Victim One and Victim Two appearing in the record are portions of
the Affidavit and the Police Report prepared by the detective. The Individual’s attorney is in possession of a copy of
the Safehouse Tape. At the hearing, in response to the Individual’s representative’s repeated argument that the
Safehouse Tape clearly exonerates the Individual, I suggested that the Individual submit a copy of the Safehouse
Tape into the record. The Individual’s attorney did not do so. Tr. at 288-289.
5 On July 7, 2012, the Spouse provided the detective with a copy of a restraining order against the Individual that
she had obtained from a local court. Exhibit 6 at 17.
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and 2 years old. She didn’t like it and always told them to stop but thought that it
may be ‘normal.’ She told us that [Victim One] touches himself ‘all of the time
under his clothes,’ [Victim Two] touches himself under his clothes as well, but
not as often. . . . The boys touch each other over clothing approximately 3 times a
week and touch each other when they are in the bathtub together, when they are
naked. [The Individual’s spouse] did say that she has seen [the Individual] give
the boys, ‘all over the body tickles’ (including the genital area) but did not think
much of it. . . . She wants to stay in a shelter to protect the lives of her children
and herself.
Exhibit 6 at 16.
On July 6, 2012, police issued a warrant for the Individual’s arrest, charging him with two counts
of “First Degree Criminal Sexual Penetration of a Minor” and two counts of “Criminal Sexual
Contact of a Minor.” Exhibit 9 at 10. Law enforcement officials arrested him on July 16, 2012.
An Affidavit for Arrest Warrant (the Affidavit) prepared by the detective reports that the
Counselor stated that she had observed the Individual being verbally abusive to his children and
to his spouse. Exhibit 6 at 6-7. The Affidavit states that Victim One informed the Counselor
that the Individual hits him when his mother is not around and told him not to tell the Counselor
about it and that his father “threatened to get really mean and hurt their mom if they talked.” Id.
The Counselor also informed child protection authorities that Victim One “touches himself all
the time” and that she had observed the Individual’s other son, Victim Two, touch himself. The
Counselor reported that both boys touch each other’s genitals. Id.
On July 7, 2012, Victim One received a Child Sexual Abuse Examination (the CSA
Examination) administered by a nurse (the Nurse). This CSA examination consisted of a
medical physical examination and forensic interview of Victim One. During the CSA
Examination, Victim One stated that the Individual had touched his genitals and bottom with his
hand. Exhibit 7 at 5. Victim One stated that the Individual had touched him underneath his
clothes and that it had happened on more than one occasion. Id. Victim One said “it felt like
tickling me.” Id. The Nurse issued a report in which she stated that her examination had found
no physical injuries and that “child sexual abuse can neither be confirmed or excluded.” Id. at
13.
On July 18, 2012, and July 23, 2012, Victim One and Victim Two were interviewed by an
independent social worker (the Independent Social Worker) at the Spouse’s request. Exhibit D
at 1. The Independent Social Worker recorded and transcribed his interviews of Victim One and
Victim Two. Victim One reported: “my dad touched my private parts.” Id. at 2. Victim One
said that the touching “started to burn” and then said it “tickled.” Id. at 2. When Victim One
was asked how long the touching lasted he replied “an hour.” Id. Victim One indicated that the
Individual had tickled him on his genitals. Id. Victim Two also reported that the Individual had
tickled him “in the privates.” Id. On August 6, 2012, the Social Worker issued a report in which
he opined:
I see no indication that the tickling offered was of a sexual nature. I do not believe
it is appropriate to tickle anyone in their private parts, yet if there was sexual
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intent by their father it was not revealed in how each child responded to my
questioning. . . . [I]t is my conclusion that I see no evidence of inappropriate
sexual contact from my interactions with these boys.
Exhibit D at 1 (emphasis in the original).
On August 22, 2012, the LSO conducted a PSI of the Individual. During the PSI, the Individual
repeatedly denied sexually abusing his sons. Id. at 16, 29, 36. He also denied being verbally or
physically abusive to his wife. Id. at 32-33, 45. The Individual claimed that the Counselor had a
grudge against him, blamed him for his son’s problems, and tried to get his wife to divorce him.
Exhibit 9 at 15. He claimed that the Counselor was “after me” because she hated men. Id. at 37.
The Individual also said that his wife was informed that she would lose the children if she did not
file for divorce. Id. at 16-17. The Individual indicated that the restraining order filed against
him by his wife had been lifted at his wife’s request. Id. at 18-19. He claimed that although the
request for the restraining order was in his wife’s handwriting, it had been dictated to her by the
child protection authorities. Id. at 20. The Individual claimed that his sons were confused by the
questions that were asked of them, claiming that the boys were confused about the meaning of
“private parts” and that when the boys were asked if the Individual had touched them inside their
bottoms, they said “yes” meaning that their bottoms had been touched indoors. Id. at 23. The
Individual also claimed that Victim One was making the accusations in order to get revenge. Id.
He claimed that Victim One had put nails under his truck’s tires, and given him several flats. Id.
The Individual claimed he had never tickled his son’s private parts, claiming he had made an
“extreme effort” to avoid tickling them there. Id. at 81-82. The Individual also asserted that his
sons had been coached to accuse him of child abuse. Id. at 82-83. The Individual stated that his
wife now believes that he did not abuse his sons stating: “whatever brain washing they had going
on with her initially she got over it pretty quick when she got home and started talking to the
boys by herself, you know, away from all these people who were trying to influence that.” Id. at
85.
On October 1, 2012, the DOE Psychologist conducted a psychological evaluation of the
Individual. On October 4, 2012, the DOE Psychologist issued a report in which he opined that
the Individual met the criteria for PDNOS set forth in the Diagnostic and Statistical Manual-
Fourth Edition (Text Revision) (DSM-IV-TR). Exhibit 4 at 8. The DOE Psychologist further
opined that PDNOS is an illness or mental condition which causes, or could cause, a significant
defect in the Individual’s judgment and reliability. Id. at 12.
On September 5, 2012, the local prosecutor issued a Nolle Prosequi (a formal decision not to
continue with prosecution) dismissing criminal charges against the Individual “because of
insufficient evidence and the interest of justice.” Exhibit 8 at 2. The Individual moved back
into the family home with the Spouse and children shortly thereafter. However, the child
protection authorities again took the children into custody on September 25. 2012. Tr. at 52.
The child protection authorities returned the children to the Spouse when the Individual agreed to
move out of the family home. Id. at 56. At the time of the hearing, the Individual had been
allowed to move back into the family home with the Spouse and Victims One and Two. Id. at
57.
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IV. DEROGATORY INFORMATION AND SECURITY CONCERNS
The record shows that the Individual was criminally charged with two counts of First Degree
Criminal Sexual Penetration of a Minor” and two counts of “Criminal Sexual Contact of a
Minor.” Such serious criminal conduct raises security concerns under Criterion L. “Criminal
activity creates doubt about a person's judgment, reliability and trustworthiness. By its very
nature, it calls into question a person's ability or willingness to comply with laws, rules and
regulations.” 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) Guideline J at ¶ 30.
“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.” Adjudicative Guideline E at ¶ 15.
Regarding Criterion H, the record shows that a DOE Psychologist has diagnosed the Individual
with PDNOS. An opinion by a duly qualified mental health professional that the individual has
“a condition . . . that may impair judgment, reliability, or trustworthiness” may raise a security
concern and be disqualifying. Adjudicative Guideline I at ¶ 28. “Sexual behavior that involves a
criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or
discretion, or which may subject the individual to undue influence or coercion, exploitation, or
duress can raise questions about an individual's reliability, trustworthiness and ability to protect
classified information.” Adjudicative Guideline D at ¶ 12.
V. ANALYSIS
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, an individual must 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 also Department of
Navy v. Egan, 484 U.S. 518, 532 (1988) (Egan) (security clearances will be granted only when
“clearly consistent with the national interest”); Personnel Security Hearing, Case No. PSH-13-
0011 (2013); Personnel Security Hearing, Case No. PSH-12-0100 (2012), and cases cited
therein.6 The regulations and the case law further instruct me to resolve any doubts concerning
the Individual’s eligibility for access authorization in favor of the national security. Egan, 484
U.S., at 532 (“the clearly consistent standard indicates that security-clearance determinations
should err, if they must, on the side of denials”); 10 C.F.R. § 710.7(a). Accordingly, unlike a
criminal matter, where the government has the burden of proving the defendant guilty beyond a
reasonable doubt, the standard in this proceeding places the onus on the individual because it is
designed to protect national security interests. An individual, however, 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
6
Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.energy.gov/oha.
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personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h).
After careful consideration of the record, I find that the Individual has not sufficiently mitigated
the security concerns raised under Criteria H and L.
Criterion L
At the hearing, the Individual denied that he had abused his sons, Victim One and Victim Two.
In support of his contention, the Individual raised several arguments.
First, he asserted that the criminal charges were dismissed by the local prosecutor. Exhibit 8. He
argued that this dismissal proves that he was unjustly accused and resolves the security concerns
raised by his arrest for First Degree Criminal Sexual Penetration of a Minor and two counts of
Criminal Sexual Contact of a Minor. I find this argument to be without merit. Derogatory
information indicating that an individual has engaged in illegal activity is not necessarily
resolved by a favorable adjudication in a criminal proceeding. Adjudicative Guidelines at
¶ 31(c); Personnel Security Hearing, Case No. PSH-13-0011 (2013); Personnel Security
Hearing, Case No., PSH-12-0130 (2012); Personnel Security Hearing, Case No. PSH-12-0097
(2012).
Second, the Individual attempted to discredit the Counselor and the detective by portraying them
as overzealous, unprofessional and misguided. On a number of occasions during the hearing,
witnesses appearing on behalf of the Individual cast negative aspersions upon the Counselor. At
the hearing, the Spouse testified that the Counselor suggested she was “a battered woman” and
suggested that she divorce the Individual and remove her children from him. Id. at 20. The
Spouse testified that the Counselor was “physically upset” when she indicated that she wanted to
“give her marriage a chance.” Id. at 21. The Spouse testified: “I told [the Counselor] that I
waffled on the divorce, I wasn't going to do it, and within 10 or 15 minutes, she found sexual
abuse.” Id. at 51.
At the hearing, the Spouse denied the veracity of the statements attributed to her in the Affidavit
and Police Report and denied that she had made them. Tr. at 61-64, 80. The Spouse did admit
expressing a concern about the children touching themselves. Id. at 88. The Spouse testified
that she informed the child protection social worker and detective that she had observed full
body tickles, but no tickling of the genitals. Id. at 29. The Spouse repeatedly testified that she
informed the detective on several occasions that the prosecution of the Individual was a
“mistake” because the children were confused. Tr. at 29, 36-37, 42, 44. The Spouse testified
that her actions, including moving into the shelter, were motivated solely by her desire to
maintain custody of her children. Id. at 64, 84. She testified that the child protection social
worker and detective threatened to take the children away from her, and only allowed her to keep
the children under four conditions: (1) that she file a restraining order against the Individual; (2)
that she file for divorce from the Individual; (3) that she change the locks on her family home;
and (4) that she move into a protective shelter with the children. Id. at 30-31, 64, 84. She
testified that she agreed with these conditions solely in order to avoid having her children placed
in foster care. Id. at 31. The Spouse testified that when she placed the restraining order, “the
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woman there at the safe house walked me through and told me what to write.” Id. at 32.
According to the Spouse’s testimony, she only wrote what she was told to write in the restraining
order application. Id. at 32. She also testified that she expanded her statement in the restraining
order application in order to warn the Individual about “what the events were.” Id. at 32-33.
After carefully reviewing the evidence in the record, I find no basis to conclude that the
Counselor misrepresented the children’s statements or coached them to make the accusations.
The Spouse testified that she observed the children touching each other’s genitals in the
Counselor’s presence immediately before the Counselor asked Victim One about the possibility
of sexual abuse.
I further find no credible evidence to support the Individual’s assertion that the detective
fabricated evidence in the Affidavit and the Police Report. While some of the Spouse’s
testimony contradicts the statements attributed to her in those documents, I did not find her
testimony on this issue to be credible. The Spouse testified that she was cooperating with the
police and child protection authorities at the time those documents were prepared. I find that the
statements attributed to the Spouse in those documents appear consistent with that cooperation.
More importantly, even if I attribute no weight to the Counselor’s reports of abuse and the
information appearing in the Affidavit and the Police Report, the remaining derogatory
information (i.e. the children’s statements and the reports of the children touching each other’s
genital areas) in the record continues to raise unresolved doubts about the Individual’s conduct
and behavior.
At the hearing, the Individual presented the testimony of a polygraph technician who testified
that the Individual truthfully answered four questions: (1) “Have you ever had skin-to-skin
sexual contact with either of your sons’ genitals?” (2) “Have you ever had skin-to-skin sexual
contact with either of your sons’ anal areas?” (3) “Have you ever penetrated the anus of either of
your sons?” and (4) “Have you ever had skin-to-skin contact with either of your sons for sexual
purposes?” According to the polygraph technician, the Individual answered “no” to each of
these questions. Tr. at 125-126. The polygraph technician testified that the results of polygraph
tests using the method he employed, the “Utah Method,” have been scientifically validated. Tr.
at 119.
I assign no probative value to the testimony of the polygraph technician or the results of his
polygraph examination of the Individual. As an initial matter, I find that the Individual could
have answered each of these four questions truthfully, and have still sexually abused Victim One
and Victim Two. Moreover, the United States Supreme Court has specifically held that “there is
simply no consensus that polygraph evidence is reliable.” United States v. Scheffer, 523 U.S.
303, 309 (1998) (Scheffer). “There is simply no way to know in a particular case whether a
polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague
even the best polygraph examination.” Scheffer, 523 U.S. at 312.
The Individual also claimed that the Safehouse Tape exonerates him by showing that the children
were confused by the meaning of “private parts” and the meaning of “inside” their bottoms. The
Individual did not submit a copy of the Safehouse Tape into the record, even though I suggested
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at the hearing that he do so. Tr. at 289. Instead, the Individual offered the testimony of the
Spouse, who claimed that after watching the Safehouse Tape she was convinced her children
were confused. The Individual’s criminal defense attorney, testified that the prosecution
dismissed the case after viewing the Safehouse Tape. The Psychiatrist testified that the Tape
does not support the allegations that the Individual sexually abused his sons. Because the
Individual elected not to submit a copy into the record, I am left with doubts whether the
Safehouse Tape mitigates the criminal conduct at issue. If the Individual was truly confident that
the Safehouse Tape exonerated him, he should have submitted a copy of it into the record.
The Individual next contended that the touching of the genitals reported by his sons on five
occasions was actually just harmless tickling which might have resulted in his inadvertently
grazing their genitals and bottoms. However, the accounts of the Individual’s touching of his
son’s genitals appearing in the record consistently describe more than innocent tickling.
Moreover, the record includes numerous observations from a number of sources of the two
children engaging in inappropriate touching of themselves and each other.
The Individual cited the willingness of the child protection authorities to allow the Individual to
return to residing with his children as evidence that they no longer believe that he sexually
abused them. However, in the present proceeding, the Individual must convince me, not the
child protection authorities, that he did not sexually abuse his sons. Moreover, I do not have the
enough information in the record to conclude that the child protection authorities have in fact
absolved the Individual.
The Spouse testified that she “has no doubt that [the Individual] has never sexually molested
[Victim One and Victim Two].” Id. at 65. She also testified: “I’ve always believed my kids.
Always.” Id. at 84. In support of her belief that the Individual did not abuse her children, the
Spouse testified that Victim Two told her that: “Daddy doesn’t touch bad.” Tr. at 35. She
further testified that when she asked Victim One where his private parts were, he indicated under
his arms, chin, belly, and legs. Id. at 36. The Spouse admitted, however, that Victim One then
identified his genitals and bottom as private parts and indicated that he meant his genitals and
rear when he said the Individual had touched his private parts. Id. The Spouse testified that the
Nurse informed her that she wasn’t sure if the children knew what touching means and that the
Nurse believed that the children had been tickled and perhaps the genitals had been brushed
during the tickling. Tr. at 47. After talking with the nurse and the Independent Social Worker,
and reviewing the Safehouse Tape, she became convinced that there was no sexual abuse. Id. at
39-42, 48-49.
After carefully reviewing all of the evidence in the record, I find that the Individual has not
convinced me that he did not sexually abuse his sons. On at least five occasions, one or both of
the Individual’s sons reported that their father had tickled or touched their private parts to trained
interviewers. While these allegations were made by a six-year-old and an eight-year-old and
contain a number of inconsistencies and incongruities, the accounts provided by the Individual’s
sons repeatedly indicate that the Individual touched their genitals. The Individual has been
unable to mitigate these accusations in this administrative proceeding. In order for me to
confidently conclude that the Individual did not sexually abuse his sons, I would have to be
convinced that the Counselor was lying and acting in a thoroughly unprofessional manner, the
10
detective perjured herself when she submitted the Affidavit to a local court, and that two six and
eight-year-old boys repeatedly lied about their father. Accordingly, I find that he has not
resolved the security concerns raised under Criterion L.
Criterion H
I further find that the Individual has not mitigated the security concerns raised under Criterion H
by his PDNOS diagnosis. The Individual has challenged the DOE Psychologist’s finding that he
suffers from PDNOS by offering the testimony of the Former Psychologist, the Treating
Psychologist, and the Psychiatrist, and by attempting to discredit the DOE Psychologist by
showing that his report contained a number of typographical and factual errors. These
typographical and minor factual errors, in my opinion, do not detract from the validity of the
Report’s conclusions.
The Former Treating Psychologist testified that she had treated the Individual for Adjustment
Disorder with Anxiety and Depression. Tr. at 240. She testified that she saw the Individual on
14 occasions between October 4, 2012 and February 7, 2013. Id. She testified that the
Individual has good judgment, and a stable personality. Id. at 240-242. She did not believe that
he had any personality disorder. Id. at 243, 245-246. When I asked her to explain why she
concluded that the Individual did not suffer from any personality disorder, she responded by
expounding a list of personality disorder traits and opining that none of them applied to the
Individual. Id. at 245-246.
The Treating Psychologist testified that he has met with the Individual a total of 11 times. Id. at
180. He testified that he had read the DOE Psychologist’s Report, had viewed the Safehouse
Tape and had discussed the case with two child protection employees. Id. The Treating
Psychologist testified that the Individual does not suffer from a personality disorder. Id. at 180-
186. He noted that the Minnesota Multiphasic Personality Inventory (MMPI) administered to the
Individual by the DOE Psychologist showed that the Individual’s overall profile was within
normal limits. Id. at 184. He further contended that the Rorschach Test administered to the
Individual by the DOE Psychologist showed that the Individual has a number of personality
“assets.” Id. at 184, 194. He further testified that the Counselor has a “confirmation bias” in
favor of finding sexual abuse.7 Id. at 197. The Treating Psychologist opined that the Individual
was not sexually abusing his sons. Most importantly, the Treating Psychologist admitted that if
the Individual had been sexually abusing his sons, the Individual may well have had a
personality disorder. Id. at 204.
The Psychiatrist testified that he had viewed the Safehouse Tape, and opined that it does not
support “the allegations that have been made,” but rather exonerates the Individual. Id. at 222-
223. The Psychiatrist suggested that the DOE Psychologist’s finding that the Individual has
PDNOS is flawed because the DOE Psychologist believed the allegations of sexual abuse against
the Individual. Id. at 224, 234. The Psychiatrist testified that because the DOE Psychologist has
not viewed the Safehouse Tape or interviewed the Spouse, and has instead relied upon
7 This testimony was elicited by an inappropriate question posed by the Individual’s attorney, specifically: “[The
Counselor] told [the Spouse] that most of the kids she sees have had some sort of sexual abuse.” Tr. at 196. There
was no evidentiary foundation in the record supporting the assertion made by the Individual’s attorney.
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information in the police reports, he had wrongfully concluded that the Individual had sexually
abused his sons. Id. at 224-225. The Psychiatrist testified that, in his clinical judgment, he could
tell that the Individual was being honest when he denied abusing his sons. Id. at 227-229. The
Psychiatrist stated that it was not just his opinion, but the opinion of the child protection
authorities and the opinion of the prosecution that the Individual did not sexually abuse his
children. Id. at 226. The Psychiatrist further testified that an eight year-old who places his hand
in his pants when anxious and that six and eight-year-old brothers who touch each other’s
genitals in the bathtub were just exhibiting “normal” behavior. Id. at 231-232. I found the
Psychiatrist’s testimony to be lacking in credibility. The only basis provided by the Psychiatrist
for his disagreement with the PDNOS diagnosis was that it was based upon the DOE
Psychologist’s assumption that the Individual sexually abused his sons. Since I have found that
the Individual has not shown that he did not abuse his sons, I find that the Psychiatrist’s analysis
to be unconvincing.
The DOE Psychologist observed the testimony of each of the other witnesses prior to his own
testimony. The DOE Psychologist testified that there is evidence, other than the children’s
allegations, which supports his finding that the Individual sexually abused his children, including
Victim One’s history of placing nails under his father’s truck tires, an eight-year putting “his
hands in his crotch when he is nervous in front of a woman who he has barely met, and children
touching each other’s genitalia in the bathtub (which should had ended by age six). Id. at 253-
255. The DOE Psychologist noted that the children had reported sexual abuse on several
occasions to a number of different professionals. Id. at 256-25. The DOE Psychologist testified
that the testing supported his PDNOS diagnosis, since it showed that the Individual was being
deceptive. Id. at 259. The DOE Psychologist testified that the Individual’s MMPI results
showed a normal profile, when in fact, his treating Psychologists were reporting an adjustment
disorder with anxiety and depression and he was in the midst of being criminally prosecuted for
sexually abusing his sons. Id. at 259-260. The DOE Psychologist testified that the Individual’s
Adjustment Disorder, anxiety, and depression should have been reflected in his MMPI if he was
giving honest answers. Id. at 260-261. The DOE Psychologist also testified that the Individual’s
Rorschach Test contradicts his MMPI results since it reflects his inner turmoil. Id. at 261-268.
The DOE Psychologist further noted that the Rorschach Test results suggested that the
Individual: “tends to be inflexible and rigid in his thinking,” “is a close minded person who
rarely changes his thinking,” has indications of impulsive behavior, “considers too little
information before making a decision” “has oppositional tendencies associated with feelings of
anger and resentment toward people and the world, in general” and is “at risk for errors in
judgment,” which are all traits of a person with a personality disorder. Id. The DOE
Psychologist also noted the lack of remorse on the Individual’s part. Id. at 282.
I found the DOE Psychologist’s testimony to be highly credible. While the Treating
Psychologist and the DOE Psychologist disagree about the proper interpretation of the MMPI
and Rorschach Test results, the Treating Psychologist, the Psychiatrist, and the DOE
Psychologist each agree that their disagreement about validity of the PDNOS diagnosis turns
upon the underlying issue of whether or not the Individual sexually abused his sons. Since I
have found that the Individual has not resolved the doubts raised by his children’s accusations, I
find that the Individual has not resolved the doubts arising from the PDNOS diagnosis.
Moreover, based on the evidence before me, I find that the Individual has not shown any
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rehabilitation or reformation from his PDNOS because he has not been treated for that condition.
Accordingly, I find that the Criterion H allegations before me remain unresolved.
V. CONCLUSION
For the reasons set forth above, after carefully considering the evidence before me, I find that the
Individual has not resolved the security concerns raised under Criteria H and L. Therefore, the
Individual has not demonstrated that restoring his security clearance 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. The Individual may seek review
of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. Part 710.28.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: June 10, 2013