PSH-13-0023

*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 27, 2013 ) Case No.: PSH-13-0023
)
____________________________________)
Issued: September 30, 2013
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Decision and Order
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Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as “the
individual”) for 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 individual’s
security clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by the Department of Energy (DOE), and was granted a security
clearance in connection with that employment. On August 7, 2012, while at work, the individual
became agitated and began experiencing an inability to concentrate, nausea, dizziness, a
shortness of breath, and a headache. The individual claims that his anxiety and agitation were
caused by a hostile work environment created by a pattern of discriminatory behavior exhibited
towards him by his supervisor. He was transported to an on-site medical facility, where, after
conducting an evaluation, personnel at the facility decided that the individual should be
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
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA
website located at http://www.oha.doe.gov . The text of a cited decision may be accessed by
entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
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transferred to a local hospital. At the hospital, the individual was diagnosed with anxiety and
received a referral for group counseling. Because this information raised security concerns, the
local security office (LSO) summoned the individual for an interview with a personnel security
specialist on August 23, 2012. At the individual’s request, a second interview was held four days
later. Because these Personnel Security Interviews (PSIs) did not resolve the LSO’s concerns, the
individual was referred to a local psychiatrist (hereinafter referred to as “the DOE psychiatrist”)
for an agency-sponsored evaluation. The DOE psychiatrist prepared a report based on that
evaluation and submitted the report to the LSO. After reviewing this report and the other
information in the individual’s personnel security file, the LSO determined that derogatory
information existed that cast into doubt the individual’s eligibility for access authorization. It
informed the individual of this determination in a letter that set forth the DOE’s security
concerns and the reasons for those concerns. I will hereinafter refer to this letter as the
Notification Letter. 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 access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Hearing Officer. The hearing was convened in
June 2013, and eight witnesses testified. Six witnesses, including the DOE psychiatrist, testified
on behalf of the DOE, and the individual and his wife testified on behalf of the individual.
Because the individual’s expert witness was unavailable to testify at that time due to a serious
illness, the hearing was reconvened in August 2013. During this second session, the individual
and his psychiatrist (hereinafter referred to as “the evaluating psychiatrist”) testified, as did the
DOE psychiatrist. The DOE introduced 31 exhibits into the record of this proceeding, and the
individual introduced 17 exhibits.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraphs (h) 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.
Under criterion (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a psychiatrist causes, or may cause, a significant defect
in the individual’s judgment or reliability.10 C.F.R. § 710.8(h). As support for this criterion, the
Letter cites the diagnosis of the DOE psychiatrist that the individual suffers from Generalized
Anxiety Disorder, Persistent Disorder of Initiating or Maintaining Sleep, and Major Depressive
Disorder, Recurrent, Severe, with Psychotic Features, and that these conditions “can cause
problems with judgment and/or reliability.” The Letter also cites the diagnosis of a licensed
psychologist that the individual suffers from Adjustment Disorder with Anxiety and Situational
Panic Attacks.
Criterion (l) defines as derogatory information indicating that the individual has engaged in
unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable
or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion,
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exploitation or duress which may cause him to act contrary to the best interests of national
security. As support for this criterion, the Letter cites statements that the individual made during
his August 23, 2012, PSI (August 23 PSI) that he was calm and in control of his ability to
communicate during his visit to the site medical facility on August 7, and statements made by
medical personnel indicating that the individual was shouting and making very loud defamatory
comments about his supervisor and “Anglos.” The Letter also cites the individual’s statement
during his August 23 PSI that he could recall the events of August 7 clearly, and his statement
during his August 27, 2012, PSI that he could not remember whether he or his wife had said on
August 7 that if his supervisor had been at the site medical facility, “I probably would have
slapped her or decked her.”
These circumstances adequately justify the DOE’s invocation of criteria (h) and (l), and raise
significant security concerns. As an initial matter, the individual has been diagnosed, by a duly
qualified mental health professional retained by the U.S. Government, with a mental condition
that could cause a significant defect in his judgment or reliability. Moreover, conduct involving
questionable judgment, lack of candor, or dishonesty can also raise questions about an
individual’s reliability, trustworthiness and ability to protect classified information. See Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, The
White House (December 19, 2005), Guidelines I and E.
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
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 or unfavorable, that has a bearing on the question of whether granting or restoring 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).
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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. 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. FINDINGS OF FACT AND ANALYSIS
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After reviewing the record in this matter in its entirety, I find that the individual has adequately
addressed the DOE’s security concerns regarding criterion (h). However, because I harbor
serious doubts about the individual’s honesty, trustworthiness and candor, I find that substantial
doubts as to the individual’s eligibility for a security clearance remain under criterion (l). My
reasons for these conclusions are set forth below.
A. Criterion (h)
As indicated above, the DOE’s invocation of criterion (h) is based primarily on the DOE
psychiatrist’s diagnosis that the individual suffers from Generalized Anxiety Disorder, Persistent
Disorder of Initiating or Maintaining Sleep, and Major Depressive Disorder, Recurrent, Severe,
with Psychotic Features. During the initial session of the hearing in June, the DOE psychiatrist
testified about his diagnosis. He based his diagnosis of Generalized Anxiety Disorder on findings
that the individual suffered “agitation, anxiety and excessive worry and he said the stress level is
unbearable.” June hearing transcript (Tr.) at 87. He further concluded that these symptoms were
affecting the individual’s physical and emotional health, his marriage and his relations with his
son. Id. Regarding the Sleep Disorder and Depressive Disorder diagnoses, the DOE psychiatrist
said that anxiety over a period of time can lead to depression and problems with sleep. He noted
that the individual was getting “three or four” hours of sleep and was having problems with
energy, motivation and interest. Id. These factors, when coupled with what the DOE psychiatrist
found to be a history of depression, led to the Sleep Disorder and Depressive Disorder diagnoses.
Tr. at 88. The DOE psychiatrist also found that the individual’s beliefs that he was being
discriminated against at work because of his ethnicity and was being “picked on” by a lot of
people, that his supervisor was using police tactics against him, and that he might have to
associate with bank robbers and child molesters if he was to take part in group therapy, were
examples of paranoia. Tr. at 88, 90. This accounted for the “Psychotic Features” portion of his
diagnosis. The DOE psychiatrist concluded that because of the high probability of a future
depressive episode, the individual needed to be under the ongoing care of a psychiatrist and
needed to be on medication. Tr. at 91. Because the individual did not meet these requirements as
of the date of the hearing, the DOE psychiatrist continued to have serious concerns about the
individual’s judgment and reliability. Tr. at 96.
The evaluating psychiatrist testified when the hearing was reconvened in August 2013. She said
that based on her evaluation of the individual and her review of a number of the exhibits
submitted in this proceeding, including the DOE psychiatrist’s report, she diagnosed the
individual with situational anxiety. August 2013 transcript (Tr. 2) at 13. She further stated that
the incident in question appeared to be a panic attack, triggered by an interaction with his
supervisor during which he perceived that his supervisor had screamed at him because of the
way that he had handled a work-related situation. Because the individual did not give her any
history of a significant mental illness and told her that, although he had been regularly evaluated
by a psychiatrist during his time in the military, no problems had been diagnosed, she concluded
that the anxiety was “situational,” i.e., related to what had transpired between the individual and
his supervisor. Tr. 2 at 13, 17. She found no evidence of any mental illness during her evaluation,
Tr. 2 at 15, and no sign of any condition that would impair his judgment or reliability. Tr. 2 at
16. As for the DOE psychiatrist’s recommendation that the individual remain under the care of a
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psychiatrist, the evaluating psychiatrist testified that, although she could not see the individual on
a continuing basis because of her illness, it was her understanding that the individual had been
seeing a therapist, and that that therapist was available to the individual on an “as needed” basis.
Tr. 2 at 23.
After hearing the evaluating psychiatrist’s testimony, the DOE psychiatrist was recalled. He
reiterated his previous testimony that the individual suffers from a recurrent “depressive anxious
illness,” and that he needed “to be monitored by somebody taking responsibility for that illness.”
Because he believed that the individual was not being sufficiently monitored by a mental health
professional, the DOE psychiatrist continued to conclude that the individual was not
demonstrating adequate evidence of rehabilitation from his Depressive Disorder. The DOE
psychiatrist indicated that the willingness of the individual’s therapist to see him on an “as
needed” basis was not sufficient to allay the DOE psychiatrist’s concerns about a recurrence of
the individual’s Depressive Disorder. Tr. 2 at 98-99, 105. However, he also testified that if it
could be demonstrated that the individual was being monitored by a psychiatrist on a regular
basis, that would be sufficient to allay the DOE psychiatrist’s concerns regarding the individual’s
mental and emotional condition. Tr. 2 at 143.
Because of this testimony and because of counsel for the individual’s assertion that the
individual was being monitored on an ongoing basis by a psychiatrist (hereinafter referred to as
“the treating psychiatrist,”) I permitted the submission of a report from the treating psychiatrist,
and a response to that report from the DOE psychiatrist. In his report, the treating psychiatrist
stated that he had performed an evaluation of the individual, including an extensive interview
and an examination of his medical history, and concluded that he did not suffer from any
diagnosable emotional or mental illness or defect. Ind. Ex. 16 at 1. He further stated that he was
familiar with much of the record of this proceeding, including the DOE psychiatrist’s report and
his testimony at the June hearing, and that in response to the DOE psychiatrist’s concerns, he had
scheduled quarterly appointments to monitor the individual’s mental and emotional state, and
would continue to do so “indefinitely.” Id.
In his response to this report, the DOE psychiatrist stated that because the individual was being
monitored and because both the evaluating psychiatrist and the treating psychiatrist said that the
individual was doing well, “he should not have problems with judgment or reliability due to
depression and anxiety.” DOE Ex. 30 at 1. However, the DOE psychiatrist did have concerns
about the individual’s honesty and candor, saying that he was not “honest and forthcoming”
during his interview with the individual, and that a patient’s honesty is essential in treatment and
diagnosis. Id.
The record in this matter indicates that, since the DOE psychiatrist’s diagnosis, two psychiatrists
and one psychologist have evaluated the individual. None of these three diagnosed the individual
as suffering from any type of depression, which was the portion of the DOE psychiatrist’s
diagnosis that caused him to doubt the individual’s judgment and reliability, and one, the treating
psychiatrist, found that he did not suffer from any diagnosable condition. 3 Furthermore, after
3 The psychologist saw the individual on two occasions shortly after the August 7, 2012,
incident, diagnosed the individual as suffering from Adjustment Disorder with Anxiety and
Situational Panic Attacks, and counseled the individual on coping mechanisms to manage what
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reading the treating psychiatrist’s report, the DOE psychiatrist indicated that he no longer had
concerns about defects in the individual’s judgment or reliability due to depression or anxiety.
Although, as discussed below, I share the DOE psychiatrist’s concerns about the individual’s
honesty and candor, I cannot ignore the favorable expert testimony and opinion in this matter. I
find that the individual has adequately addressed the DOE’s concerns under criterion (h).
B. Criterion (l)
I reach a different conclusion, however, with regard to criterion (l). As set forth above, the
DOE’s invocation of this criterion was based on perceived inconsistencies between his August
23 PSI and statements made by medical personnel who witnessed his behavior on the morning
that he was transported to the site medical facility and then later, to a local hospital, and
inconsistencies between his August 23 and August 27, 2012, PSIs.
After reviewing the two PSIs, I find that, while the record supports the existence of the
inconsistencies outlined in the Notification Letter, the individual was more honest about his
emotional state while at the site medical facility during the second PSI than during the first.
Whereas during the first interview, the individual said that he was calm and in control, during the
second, the individual admitted that he was “clearly upset” and “distraught.” DOE Ex. 3 at 5, 6.
While these admissions are of some limited mitigating value, 4 they fall far short of convincing
me that there are no legitimate security concerns regarding the individual’s honesty and
reliability.
As an initial matter, the individual’s shifting contentions regarding the statement about
“decking” his boss leave me with substantial doubts as to the veracity of any of the individual’s
claims about the matter. During his August 23 PSI, the individual said that he was in control of
his ability to communicate on the morning of August 7th, and that he remembered everything
that he said. DOE Ex. 4 at 19, 22. Despite being asked repeatedly if there was anything else that
he recalled about his statements on that morning, and despite being warned about the possible
consequences of making false, incomplete or misleading statements, the individual made no
mention of the comment about “decking” his boss. After that interview, the individual executed a
release that allowed the DOE to obtain his medical records. Four days later, the individual
revealed that on August 7th, a comment was made at the local hospital that if his boss was
present, “I probably would have slapped her, or decked her,” but the individual could not
remember if he or his wife said it. DOE Ex. 3 at 5. However, during his June 5, 2013, testimony
at the hearing, the individual said that he was 99 percent certain that his wife had made the
comment in question. Tr. at 245. His wife also testified that she made the statement. Tr. at 265.
Nevertheless, I have substantial doubts about the veracity of this testimony. As indicated above,
he termed “work-related stress.” Ind. Ex. 8. I note, however, that as discussed in Section IV.B of
this Decision, the individual was not completely honest and forthcoming with the evaluating
psychiatrist regarding his psychiatric history. It is also not evident from the record whether the
individual was candid with the psychologist in this regard, or what sources of information, other
than the individual, he relied on in reaching his diagnosis.
4 See Adjudicative Guideline E, ¶ 17(a): “the individual made prompt, good faith efforts to
correct the omission, concealment, or falsification before being confronted with the facts.”
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the DOE obtained the individual’s medical records, including those generated during the
individual’s visit to the local hospital emergency room on the morning of August 7th. Under the
heading “Initial Assessment” and the sub-heading “Additional Findings,” are handwritten notes
that read “trouble sleeping & reg. headaches since Nov. [unintelligible] anxiety today denies si/hi
sts would ‘deck boss’ if able.” DOE Ex. 5 at 7. Although the records do not specify who made
the statement, the fact that the statement was memorialized in the midst of information about the
individual that was obtained from the individual during the process of evaluating his emotional,
mental and physical condition strongly suggests that it was he who made the statement in
question.
Moreover, the record in this matter demonstrates that the individual has engaged in a pattern of
providing false, incomplete, or misleading information to the DOE, and even to his evaluating
psychiatrist. First, during an OPM background investigation in 2009, the individual told a federal
investigator that there had not been any infidelity during any of his previous three failed
marriages by either himself or his wives. DOE Ex. 19 at 25. However, he told the DOE
psychiatrist that during his first marriage, his wife had an affair, and during his second, both he
and his wife had affairs. DOE Ex. 2.
The individual was also less than completely honest and forthcoming during his evaluation by
the DOE psychiatrist. He informed the DOE psychiatrist that he had never received psychiatric
treatment before, other than in the recent past, when he was prescribed Valium to deal with stress
caused by his relationship with a previous supervisor. Id. However, the individual was found to
be “moderately depressed,” and was diagnosed by a military psychiatrist in 1991 as suffering
from Adjustment Disorder With Depressed and Anxious Moods. He was prescribed Valium for
this condition. DOE Ex. 20 at 8. The individual testified, unconvincingly, that he did not recall
this treatment. Tr. at 251. Moreover, the intake assessment from the local hospital noted that the
individual had a “history of Depression.” DOE Ex. 5 at 14. The source of this information is
unclear, if it did not come from the individual. The individual also told the DOE psychiatrist that
his dosage of Valium was 2.5 milligrams. DOE Ex. 2. He stated during his August 23 PSI that he
was taking 5 milligrams, DOE Ex. 4 at 15, and he testified in June that his dosage was either 2.5
or 5 milligrams. Tr. at 180. However, according to the medical records obtained from the local
hospital, the individual was on a prescribed dosage of 10 milligrams of Valium.
Furthermore, the record indicates that the individual either omitted significant information, or
provided false information to his own evaluating psychiatrist in at least two instances. First,
despite being asked about any previous psychiatric problems, as was the case with the DOE
psychiatrist, the individual failed to mention his 1991 diagnosis and treatment while he served in
the armed forces. In fact, the individual told the evaluating psychiatrist that he was screened
regularly by a psychiatrist during his military service because of his work with prisoners of war,
and no problems were ever discovered. Ind. Ex 14 at 2.
Second, the individual gave the evaluating psychiatrist an explanation of the event that triggered
his August 7th episode that is totally inconsistent with the explanation that he gave to the DOE
and to at least one medical professional on the day of the incident in question. During his August
23 PSI, he told the DOE that his breakdown on August 7th was triggered by a string of e-mails
from his supervisor that contained “very demeaning” language. DOE Ex. 4 at 7-8. In an e-mail
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from one of the physicians at the site medical facility to the individual’s supervisor, the physician
reported that the individual said “there was a chain of negative e-mails sent by the mgr. today
which when he read them, caused the intense nervous and unable to visibly focus (sic).”
However, the individual did not discuss these e-mails with the evaluating psychiatrist, and
instead told her that the events of August 7th were triggered by a telephone conversation during
which the individual’s supervisor allegedly yelled at him. Ind. Ex. 14 at 2; Tr. 2 at 33-34. The
individual testified in August about this alleged telephone conversation. He said that his
supervisor called him on August 7th “while she was driving in her car,” and “started yelling at
[him] about [his] time sheets.”Tr. 2 at 89.
The record in this matter clearly indicates that a telephone conversation such as that described by
the individual simply did not take place. First, in a signed affidavit dated August 30, 2013, the
individual’s supervisor stated that she did not receive a telephone call from the individual or
place a call to him while driving to work on August 7, 2012, and that she did not, in fact, speak
to him at all on that day. DOE Ex. 30 at 1. The supervisor’s statements about not speaking to the
individual on the telephone on the morning of August 7th are supported by telephone records
which show that the supervisor did not make or receive any calls on her government cell phone
on that day and that the individual did not make or receive any calls on his office phone that day.
Id. at attachments 2, 4. The individual’s office is in a restricted area where personal telephones
are not allowed, and where the arrivals and departures of employees are electronically tracked.
The DOE has submitted documentation indicating that the individual entered the restricted area
at 6:28 a.m. on the morning of August 7th, and left it shortly after 10 a.m., when he was
transported to the site medical facility. Id. at attachment 6. Given this history of providing false,
incomplete, or misleading information to the DOE and to his evaluating psychiatrist, I find that
the individual has not successfully addressed the DOE’s security concerns under criterion (l)
regarding his honesty and reliability.
V. CONCLUSION
For the reasons set forth above, I find that the individual has adequately addressed the DOE’s
security concerns regarding criterion (h), but that valid concerns remain regarding his honesty
and reliability. He has therefore failed to mitigate the DOE’s security concerns under criterion
(l). Consequently, he has failed to convince me that restoring his 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 restore the individual’s security clearance 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.
Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: September 30, 2013