PSH-13-0011

* 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: February 4, 2013 )
) Case No.: PSH-13-0011
__________________________________________)
Issued: May 20, 2013
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Hearing Officer Decision
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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 March 26, 2012, the Individual reported to a Local Security Office (LSO) that he had been
arrested three days earlier and charged with “Sexual Misconduct or Attempt Involving a Child
Under 15.” Exhibit 8 at 1. The LSO conducted a Personnel Security Interview (PSI) of the
Individual on April 11, 2012, and then referred him to a DOE Psychologist who diagnosed the
Individual as suffering from Narcissistic Personality Disorder (NPD).
Unable to resolve the security concerns raised by the criminal charges, the conduct underlying
these charges, and the NPD 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).
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
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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 February 4, 2013.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, his treating therapist (the Therapist), and the DOE Psychologist. See Transcript of
Hearing, Case No. PSH-13-0011 (hereinafter cited as “Tr.”). The LSO submitted 11 exhibits,
marked as Exhibits 1 through 11. The Individual submitted one exhibit, marked as Exhibit A.
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
In August 1999, local child protection authorities conducted an investigation into allegations that
the Individual had digitally penetrated a five-year old girl’s (Victim One) vagina and found “a
probable cause finding of sexual abuse.” Exhibit 9 at 11, 38. During a September 13, 2007,
Office of Personnel Management (OPM) interview, the OPM Interviewer asked the Individual
about the incident involving Victim One. The Individual reported that Victim One’s mother had
reported the incident to child protection authorities. Exhibit 11 at 58. The Individual told the
OPM interviewer that Victim One had been wearing a swim suit that was too small for her and
that he had pulled the suit out from between her legs. Id. During an April 11, 2012, PSI, the
Individual essentially repeated this description of the incident, but claimed that he was accused
of “touching” Victim One, while failing to mention that he was accused of digitally penetrating
her. Exhibit 10 at 67-68, 70. According to the Individual, the police questioned him about this
incident, but he was never arrested or charged as a result of that incident. Id. at 70, 76-77. The
Individual denied that he had sexually abused Victim One. Id. at 78-79.
On October 30, 2011, the Individual’s 15-year old daughter (Victim Two) asked to speak with a
counselor at her school. Exhibit 10 at 28. Victim Two told the school counselor that she was
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afraid to return home, because her step-mother had recently moved out of the family home,
leaving her living alone with her father (the Individual), and she was concerned that the
Individual would sexually abuse her. The school counselor immediately reported Victim Two’s
concerns to the police and child protection authorities. Exhibit 9 at 8. Victim Two subsequently
explained to the police why she was afraid of living with the Individual. Victim Two stated that,
when she was in the sixth grade, her father made her take off all of her clothes and clean the
kitchen naked. Id. Victim Two stated that when she finished cleaning the kitchen, she went to
look for her father and found him undressed. Id. at 8, 23. Victim Two reported that her father
had previously rubbed her back and high on the inside of her thighs over her clothes. She
reported that she had informed the Individual that it made her uncomfortable on several
occasions. Id. Victim Two stated that her father had asked “how does this feel” while rubbing
her leg. Id. at 23. Victim Two reported that her father had been touching her daily since her
step-mother moved out. Id. Victim Two reported that the Individual had invited her into his bed
to cuddle. Id. Victim Two decided to report her concerns after an incident in which her father
asked her to lock the family computer. When she arrived at the computer, she saw “father
daughter sex” had been typed into the search engine. Id. Victim Two also reported that her
father wanted her to talk to him about her “sexual feelings” which made her uncomfortable. Id.
Victim Two reported that the Individual had asked her if she “felt wet down there.” Id. at 23.
Victim Two reported that she was “afraid” of her father. Exhibit 9 at 19.
The child protection authorities interviewed the Individual on October 31, 2011. The Individual
admitted that he made Victim Two strip and clean the kitchen. Exhibit 9 at 20. He claimed that
he had only required her to strip down to her underwear, however. Id. The Individual claimed
that he had ordered Victim Two to strip and clean the kitchen because he did not know of any
other way to motivate her, since spankings, time-outs, and groundings had not worked before.
Id. The Individual claimed that he had rubbed Victim Two’s leg in order to wake her for school.
Id. The Individual admitted to visiting father daughter sex websites. Id.
On October 31, 2011, the child protection authorities issued a report stating they had:
“determined by a preponderance of evidence that [Victim Two] was the victim of sexual abuse in
the form of being exposed to sexual material, sexual grooming and unwanted inappropriate
touching perpetrated by [the Individual].” Exhibit 9 at 27. Police and child protection
authorities immediately removed Victim Two from the Individual’s home and placed her in
protective custody with a foster family. On March 23, 2012, the police arrested the Individual
and charged him with “Sexual Misconduct or Attempt involving a Child Under 15.”
On December 8, 2011, the Individual began counseling with the Therapist, a licensed clinical
social worker. Exhibit 9 at 63. The Therapist initially diagnosed the Individual with Adjustment
Disorder with Mixed Anxiety and Depression. Id. at 68.
On March 3, 2012, a psychologist retained by the child protection authorities (the Child
Protection Psychologist) conducted a psychological evaluation of the Individual and
administered a series of standardized psychological tests. On March 9, 2012, the Child
Protection Psychologist issued a report in which he diagnosed the Individual with both
Narcissistic Personality Disorder and Adjustment Disorder with Mixed Anxiety and Depressed
Mood, Acute. Exhibit 9 at 94. The Child Protection Psychologist’s report further opines that:
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“[The Individual’s] exaggerated self-involvement and feelings of entitlement, poor impulse
control, tendency to project blame onto others and avoid personal responsibility, suspiciousness
and social detachment, emotional immaturity, poor interpersonal boundaries, rigidity, and poor
social judgment are significant risk factors for sexual and other types of acting out.” Id.
On April 11, 2012, the LSO conducted a PSI of the Individual. The Individual claimed that “this
whole thing has been blown completely out of proportion” and accused his daughter, Victim
Two, of being dishonest. Exhibit 10 at 19, 22. The Individual suggested that Victim Two was
lying because she had “psychological problems” and was “very manipulative.” Id. at 97-98. He
further claimed that his daughter’s “story keeps changing.” Id. at 64. The Individual claimed
that the child protection authorities had placed Victim Two in a foster home with her boyfriend.
Id. at 45, 139.
The Individual stated that the police and child protection authorities had misinterpreted his
statement that he had “typed father daughter sex talks” into the search engine as an admission
that he had viewed father daughter sex pornography. Exhibit 10 at 42-43. The Individual
claimed that he typed “father daughter sex talks” into an internet search engine because he was
searching for advice on how to educate his daughter about sex. Id. The Individual claimed that
he had been doing so for some time and that sometimes, when he was searching for educational
websites, pornographic “father-daughter” websites would come up inadvertently. Exhibit 10 at
23. The Individual claimed that he was unaware that the father daughter sex search results were
on the computer when he asked her to turn the computer off. Id. at 24.
During the PSI, the Individual provided an account of the touching incidents which differed from
that which he had provided to the child protection officials and police. Id. at 25-26. For
example, he told the child protection officials and the police that he had touched his daughter’s
leg in order to wake her up to go to school in the morning, while during the PSI, the Individual
stated that he had touched his daughter’s leg while watching television on the couch. Id. The
Individual denied that he asked his daughter to come into the bedroom and cuddle. Id. at 31. He
admitted that there were times when they sat on the couch and he would put his hand on Victim
Two’s leg and she would complain that it was uncomfortable. Id. at 33. The Individual stated
that he was just trying to be an affectionate father. Id. at 35.
As for his question to his daughter about being “wet down there,” he stated: “I said it's just like
when I was a kid and I started to get a hard-on it freaked me out because nobody ever explained
any of that to me, so I was trying to keep that situation from happening. So I told her, I said,
your body is going through changes and things will happen. And I kinda described some of them
and that's what I did.” Id. at 146.
The Individual admitted that the Child Protection Psychologist diagnosed him with Narcissistic
Personality Disorder (NPD). Id. at 111. He strongly disagreed with that diagnosis, however. Id.
at 111-113. During the PSI, the Individual claimed that he shared the Child Protection
Psychologist’s report with the Therapist and discussed the NPD diagnosis with the Therapist.
The Individual stated that the Therapist “completely disagrees with the results.1” Id. at 114-116.
1 At the hearing, the Therapist denied that he told the Individual that the Individual did not suffer from NPD. Tr. at
41.
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On May 15, 2012, the DOE Psychologist conducted a psychological evaluation of the Individual.
On May 29, 2012, the DOE Psychologist issued a report in which she opined that the Individual
met the criteria for NPD set forth in the Diagnostic and Statistical Manual- Fourth Edition (Text
Revision) (DSM-IV-TR), having met six of the nine diagnostic criteria for the disorder (only five
criteria need to be met in order for the diagnosis to apply). Exhibit 6 at 11-12. Noting past
issues with the Individual’s employment and finances, the DOE Psychologist opined that the
Individual has “difficulties setting limits on his self-gratification” which “extend into areas other
than sex.” Id. at 9. The DOE Psychologist further opined that NPD 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 January 14, 2013, the criminal charges against the Individual were dismissed without
prejudice. Exhibit A at 1. However, Victim Two remains in protective custody, and the
Individual is still prohibited from contacting her without official supervision. Tr. at 61-62. The
Individual testified at the hearing that he has recently been allowed to have unsupervised visits
with his other three minor daughters. Id. at 63.
IV. DEROGATORY INFORMATION AND SECURITY CONCERNS
The record shows that the Individual was criminally charged with Sexual Misconduct or Attempt
involving a Child under 15. Such serious criminal conduct raises security concerns under
Criterion L. Moreover, the evidence gathered during the LSO’s investigation of these criminal
charges constitutes derogatory information which raises serious 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.
The record shows that two psychologists have diagnosed the Individual with Narcissistic
Personality Disorder. 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
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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-12-
0100 (2012), and cases cited therein.2 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 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 testified, and submitted Exhibit A in corroboration, that the
criminal charge of Sexual Misconduct or Attempt involving a Child under 15 was dismissed by
the presiding judge. Tr. at 75. The Individual argues that this dismissal proves that he was
unjustly accused and resolves the security concerns raised by his arrest for Sexual Misconduct or
Attempt involving a Child under 15. However, this contention is 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-12-0130 (2012); Personnel Security
Hearing, Case No. PSH-12-0097 (2012). In the criminal proceeding, the burden of proof was on
the government to show beyond a reasonable doubt that the Individual had committed Sexual
Misconduct or Attempt involving a Child under 15, while in the present proceeding the onus is
on the Individual to adequately mitigate the security concerns associated with the conduct which
led to the criminal charges. The accounts of the incidents involving Victim One and Victim
Two, as well as the corroborative evidence gathered by the police and child protective
authorities, constitute sufficient unresolved derogatory information to raise serious security
concerns about the Individual. This hearing was an opportunity for the Individual to provide
evidence to resolve or mitigate the lingering doubts raised by this derogatory information. After
considering the evidence in the record, including the testimony of the Individual and his
2
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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Therapist, I find that the Individual has not resolved or mitigated the lingering doubts raised by
this derogatory information concerning the alleged Sexual Misconduct or Attempt involving a
Child under 15.
The Individual denies that any of his conduct was motivated by a desire to seek sexual
gratification and suggests that the each of the incidents described above have innocent
explanations. At the hearing, the Individual testified that he had ordered Victim Two to clean the
kitchen floor in her underwear because she had previously taken four hours to clean the kitchen
floor.3 He testified that he believed the embarrassment would cause her to work faster. Tr. at 65-
66. The Individual testified that he did not realize how that incident could be seen as sexual until
the authorities brought charges against him. Id. at 69. The Individual testified that rubbing his
daughter’s leg was merely meant as an expression of parental affection, rather than a sexual
gesture. Id. at 69-70. He admitted that Victim Two would complain that this leg rubbing made
her uncomfortable, and that he would unconsciously repeat this activity when she would sit next
to him on the couch. Id. The Individual testified that Victim Two would only sit next to him
when his wife (her step-mother) was not present. Id. at 71. The Individual admitted that he
would ask Victim Two how it felt when he was rubbing her leg, but claimed he was only asking
in order to be sure he was not making her uncomfortable. Id. at 72. The Individual testified that
he asked Victim Two about “being wet down there” as a parent attempting to help her
understand the changes her body was undergoing during adolescence. Id. at 72-74. During his
testimony at the hearing, the Individual admitted he had touched Victim One’s genitalia, but
argued that it was not for sexual gratification. Id. at 77. The Individual claimed he was trying to
fix Victim One’s swim suit. Id. at 78. When questioned about the allegation that he had
digitally penetrated Victim One, the Individual testified “I had never seen a report that says I
penetrated her, because I never did do that.” Id. at 88.
After carefully considering the Individual’s demeanor, I did not find the Individual to be a
credible witness. His accounts of the incidents have changed over time, contradict one another,
and are hard to believe. The sheer number of incidents and accusations give weight to the
inference that the Individual was grooming Victim Two for incestuous sexual activity as
suggested by the child protection authorities. Exhibit 9 at 27. Moreover, even if I were to
believe the Individual’s assertion that his conduct was not sexually motivated, it still brings the
soundness of his judgment into question.
Accordingly, I find that the Individual has not resolved the security concerns raised under
Criterion L.
Criterion H
I find that the Individual has not mitigated the security concerns raised under Criterion H by his
NPD diagnosis. The Individual does not meaningfully dispute the DOE Psychologist’s
conclusion that he suffers from NPD. In fact, the record shows that three mental health
3 During the PSI, the Individual claimed that it had taken Victim Two 10 hours to clean the kitchen floor. Exhibit
10 at 14.
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professionals (the Child Protection Psychologist, the DOE Psychologist, and the Therapist) have
found that the Individual is properly diagnosed with NPD. Exhibit 9 at 94; Exhibit 6 at 11-12;
Tr. at 17-19.
The DOE Psychologist found that the Individual’s NPD is an illness or mental condition which
causes, or could cause, a significant defect in the Individual’s judgment and reliability. Exhibit 6
at 12. The Individual’s Therapist, during his testimony at the hearing, contended that the effect
of the NPD on the Individual’s judgment and reliability still needs to “be determined over time.”
Tr. at 18. The Therapist testified that the Individual’s poor judgment tends to be limited to his
parenting, “in other aspects of his life, he is almost scrupulous with maintaining legal rules.” Id.
at 30-32. I found the DOE Psychologist’s testimony on this issue to be more credible, since she
correctly noted that the Individual has exhibited poor judgment in his financial affairs and in
work situations. Moreover, the DOE Psychologist’s testimony that the Individual’s NPD causes
a significant defect in his judgment and reliability is supported by the Child Protection
Psychologist’s report, as discussed above in Section III of this decision.
The evidence before me does not show that the Individual is reformed or rehabilitated from his
NPD. The Therapist testified that he and the Individual have met for 34 one-hour sessions since
December 2011. Tr. at 27-28. He testified that the Individual was about three-quarters of the
way through his course of treatment. Id. at 29. The Therapist testified that the Individual’s life
“still is not stabilized.” Id. The Therapist testified that the Individual was responding to
treatment “very well” and described the Individual’s prognosis as “good.” Id. at 33, 40.
The Individual testified that he sought treatment because it was required by the child protection
authorities. Tr. at 48. The Individual testified that he was considering finding a different
counselor or finding a therapy group, because he was not sure if he was getting the results he
should have been or if he was getting the right type of treatment. Id. at 49-50, 53-55.
At the hearing, the DOE Psychologist observed the testimony of each of the other witnesses
before she, (the DOE Psychologist) testified. The DOE Psychologist testified that she continued
to be of the opinion that the Individual met the criteria for NPD. Tr. at 91. The DOE
Psychologist testified that the Individual’s condition is treatable, but the counseling he has been
receiving is not addressing the issues of the primary diagnosis, which is NPD. Id. at 92. The
DOE Psychologist testified that the treatment has not been sufficiently frequent. Id. She
testified that NPD is an enduring pattern and pervasive pattern of behavior, which requires
intensive treatment on a weekly basis, for at least a two year duration. Id. at 92, 94-95. The
DOE Psychologist testified that the Therapist had not been using any of the three approaches to
NPD considered to be effective by the psychology profession, but instead, seemed to be targeted
at addressing the Individual’s adjustment disorder. Id. at 92-93. The DOE Psychologist testified
that the NPD continues to cause a defect in the Individual’s judgment and reliability. At this
point, the DOE Psychologist testified, the Individual’s prognosis is poor because of the lack of
appropriate treatment. Id. at 93-94.
I found the DOE Psychologist’s testimony to be highly credible. Based on the evidence before
me, I find that the Individual has not shown any rehabilitation or reformation from his NPD
because he has not been adequately treated for that condition. Accordingly, I find that the
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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: May 20, 2013