PSH-13-0038

* 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: March 21, 2013 ) Case No.: PSH-13-0038
)
__________________________________________)
Issued: June 26, 2013
______________________
Hearing Officer Decision
______________________
Janet R. H. Fishman, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to
as “the Individual”) to hold an access authorization1/ under the Department of Energy’s
(DOE) regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria
and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.” As fully discussed below, after carefully considering the record before
me in light of the relevant regulations and Adjudicative Guidelines, I have determined
that the Individual’s access authorization should not be granted at this time.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a
DOE security clearance. After reviewing the Individual’s Questionnaire for National
Security Positions (QNSP), the Local Security Office (LSO) conducted a personnel
security interview (PSI) with him. As a result of the PSI, the Individual was evaluated by
a DOE psychologist, who diagnosed him as having a mental condition which causes or
may cause a significant defect in judgment and reliability.
1/ Access authorization is defined as “an administrative determination that an Individual is eligible
for access to classified matter or is eligible for access to, or control over, special nuclear
material.” 10 C.F.R. § 710.5(a). Such authorization will be referred to variously in this Decision
as access authorization or security clearance.
2
On February 26, 2013, the LSO sent a letter (Notification Letter) to the Individual
advising him that it possessed reliable information that created a substantial doubt
regarding his eligibility to hold a security clearance. In an attachment to the Notification
Letter, the LSO explained that the derogatory information fell within the purview of two
potentially disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8,
subsections (h) and (l) (hereinafter referred to as Criterion H and Criterion L).2/
Upon his receipt of the Notification Letter, the Individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Hearing Officer in the case and
I subsequently conducted an administrative hearing in the matter. At the hearing, the
LSO presented the testimony of a DOE psychologist; the Individual presented his own
testimony and the testimony of three witnesses. The LSO submitted 11 exhibits into the
record.
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable
doubt. Rather, the standard in this proceeding places the burden on the Individual because
it is designed to protect national security interests. This is not an easy burden for the
Individual to sustain. The regulatory standard implies that there is a presumption against
granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (“clearly consistent with the national interest” standard for granting
security clearances indicates “that security determinations should err, if they must, on the
side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied,
499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The Individual must come forward with evidence to convince the DOE that restoring his
access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The Individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a
very broad range of evidence at personnel security hearings. Even appropriate hearsay
evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an Individual is afforded the
utmost latitude in the presentation of evidence to mitigate the security concerns at issue.
2/ Criterion H concerns information that a person has “[a]n illness or mental condition of a nature
which, in the opinion of a psychiatrist or a licensed clinical psychologist, causes or may cause, a
significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h). Criterion L relates to
information that a person has “[e]ngaged in any unusual conduct or is subject to any
circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or
which furnishes reason to believe that the individual may be subject to pressure, coercion,
exploitation, or duress which may cause the Individual to act contrary to the best interests of the
national security . . .” 10 C.F.R. §710.8(l).
3
B. Basis for the Hearing Officer’s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to
issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the
granting or continuation of a person’s access authorization will not endanger the common
defense and security and is clearly consistent with the national interest. 10 C.F.R.
§ 710.7(a). I am instructed by the regulations to resolve any doubt as to a person’s access
authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites two criteria as the bases for suspending the
Individual’s security clearance, Criteria H and L. The Individual’s diagnosis by a DOE
psychologist that the Individual has a mental condition which causes or may cause a
significant defect in judgment and reliability raises a security concern under Criterion H
because “[c]ertain emotional, mental, and personality conditions can impair judgment,
reliability, or trustworthiness.” See Guideline I of the Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, issued on December 29,
2005, by the Assistant to the President for National Security Affairs, The White House
(Adjudicative Guidelines).
To support the Criterion L security concern, the LSO relies on the Individual’s unreliable
behavior, which includes ten arrests. “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.” Adjudicative
Guideline J at ¶ 30. The Individual’s failure to file income taxes from 2002 to 20073/
involves “[c]onduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations.” Adjudicative Guideline E at ¶ 15.
Such conduct “can raise questions about an individual's reliability, trustworthiness and
ability to protect classified information.” Id. Finally, the Individual’s false statements to
the OPM investigator raise a concern because “any failure to provide truthful and candid
answers during the security clearance process” suggests that an individual lacks candor
and truthfulness. Id.
IV. Findings of Fact
During a routine background investigation, the LSO found inconsistencies in the
Individual’s statements regarding his alcohol use. DOE Ex. 3 at 1. Because of these
inconsistent statements, the LSO sent the Individual to a DOE psychologist for
evaluation. DOE Ex. 3 at 1. The DOE psychologist did not tender a diagnosis with
3/ The LSO did not allege that the Individual was financially irresponsible because he failed to file
his state and federal income taxes. At the hearing, the Individual’s wife testified that he is
currently making payments to the Internal Revenue Service on a payment plan and is current with
his taxes, otherwise. Tr. at 35; see DOE Ex. 4 at 2.
4
respect to the Individual’s alcohol use, but diagnosed an unspecified mental illness. DOE
Ex. 4 at 9. At the hearing, the DOE psychologist asserted that the Individual has a “trait,
an enduring personality tendency, that continues to make me feel that [he is] unreliable.”
Tr. at 84. To support his diagnosis, the DOE psychologist pointed to the Individual’s five
DWI arrests to show that the Individual did not learn from his previous behavior of
drinking and driving but continued that behavior on at least four subsequent occasions.
Tr. at 77. Further, the DOE psychologist highlighted the Individual’s failure to follow
the law and file his state and federal income taxes, not because it indicates that he is
financially irresponsible, but because his failure to file shows that he does not follow
rules. Tr. at 77. Finally, the DOE psychologist emphasized the Individual’s false
statements to both the OPM investigator and the Personnel Security Specialist (PSS)
during the PSI. The DOE psychologist stated that these false statements show that the
Individual is not rehabilitated from his unreliable behavior of the past since these
statements occurred during the current administrative review process. Tr. at 89.
In addition to the DOE psychologist’s diagnosis, the Individual has demonstrated
unreliable behavior as evidenced by his past arrests and contempt of court charges. The
Individual was first arrested for DWI in 1989. DOE Ex. 11 at 45-47. Four other DWI
arrests followed in 1990, 1992, 1994, and 2006. DOE Ex. 11 at 47-48, 48-49, 49-52, and
52-53. In addition to the DWI arrests, the Individual has been charged with a Battery
Against a Household Member and a Battery/Domestic Violence, both of which were
against his current wife. DOE Ex. 11 at 54-55, 56-57; Tr. at 31, 47-48, 54. However,
both the Individual and his wife testified that she caused the events that led to his 2010
arrest. Tr. at 31, 48, 65-66. She began hitting him and he attempted to grab her but
missed and hit her instead. Tr. at 31, 65-66. They both testified that the Individual was
arrested because his wife was the primary caregiver for her disabled daughter, who was
still in the home. Tr. at 48, 66. Finally in 2006 and 2009, the Individual was charged
with contempt of court for failing to comply with court requirements assessed in previous
convictions. DOE Ex. 11 at 88-89, 89-90.
In addition to his arrests and contempt of court charges, the Individual failed to file his
state and federal income taxes for approximately five years, from 2002 through 2007.4/
DOE Ex. 11 at 18-19; DOE Ex. 4 at 2; Tr. at 32. Further, the Individual made false
statements to the OPM investigator when he claimed that he stopped consuming alcohol
in 2007. He exacerbated those false statements by stating to the PSS that there must have
been a misunderstanding between him and the OPM investigator, because he did not tell
the OPM investigator that he had not consumed alcohol since 2007. DOE Ex. 11 at 87.
However, during the DOE psychologist’s evaluation, the Individual admitted that he was
dishonest about his alcohol consumption during the administrative review process by
telling the OPM investigator that he had not consumed alcohol since 2007, and the PSS
that there was a misunderstanding with the OPM investigator. DOE Ex. 4 at 6. When
asked at the hearing why he told the OPM investigator that he had not consumed alcohol
since 2007, he stated that he just lied. Tr. at 74.
4/ Again, the Criterion L concerns were not based on the Individual’s financial irresponsibility but
rather his failure to follow the law.
5
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the testimony of the witnesses presented at the hearing. In
resolving the question of the Individual’s eligibility for access authorization, I have been
guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)5/ and the Adjudicative
Guidelines. After due deliberation, I have determined that the Individual’s access
authorization should not be restored. I cannot find that granting the Individual a security
clearance would not endanger the common defense and security and is clearly consistent
with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in
support of this decision are discussed below.
A. Criterion H
At the hearing, the DOE psychologist confirmed his diagnosis regarding the Individual’s
mental condition. Tr. at 76, 83. The DOE psychologist indicated that he has “less
suspicion -- still some question, but much reduced suspicion about the 2010 . . . assault
charge.” Tr. at 76. The DOE psychologist opined that the Individual does not
demonstrate self control. Tr. at 77. As an example, he pointed to the Individual’s five
DWIs and failure to file his taxes for five years. Tr. at 77. The DOE psychologist
continued that the Individual did begin to correct his behavior when he got married and
applied for the position at DOE. Tr. at 77, 89. The death of his step children6/ also
helped the Individual’s maturity. Tr. at 89. The DOE psychologist averred that the
Individual getting the job at DOE helped him to mature. Tr. at 78. However, the DOE
psychologist opined that lying is part of the Individual’s character as represented by his
failure to follow the law and pay his taxes and his failure to complete his court-ordered
community service. Tr. at 80. The DOE psychologist asserted that the Individual’s past
behavior was further exacerbated by the Individual’s falsifications to the OPM
investigator. Tr. at 78-79. The DOE psychologist concluded that the Individual has a
mental trait that makes him unreliable. Tr. at 84. The testimony at the hearing did not
change the DOE psychologist’s opinion. Tr. at 76, 83. The DOE psychologist stated that
if the Individual and his wife would undertake joint therapy for six months, the Individual
could be interviewed again. Tr. at 87. The DOE psychologist opined that the Individual
could possibly be rehabilitated. Tr. at 87.
5/ Those factors include the following: the nature, extent, and seriousness of the conduct, the
circumstances surrounding the conduct, to include knowledgeable participation, the frequency
and recency of the conduct, the age and maturity at the time of the conduct, the voluntariness of
his participation, the absence or presence of rehabilitation or reformation and other pertinent
behavioral changes, the motivation for the conduct, the potential for pressure, coercion,
exploitation, or duress, the likelihood of continuation or recurrence, and other relevant and
material factors.
6/ The Individual’s step-son died in 2006 at age 17. Tr. at 37; DOE Ex. 10 at 25. His step-
daughter died in 2010 at age 16. Tr. at 37; DOE Ex. 10 at 25. Both children had a disability. Tr.
at 36. The son died of his disability. Tr. at 37. The daughter had a genetic disease that caused
her death. DOE Ex. 4 at 5.
6
The Individual did not present compelling evidence that would convince me to disregard
the DOE psychologist’s opinion. The Individual’s witnesses testified that he is a reliable
person who will help whenever asked. Tr. at 17. They testified that he is honest,
straightforward, and trustworthy. Tr. at 18, 27. The Individual’s wife testified that he
was very responsible in the care of her children prior to their deaths. Tr. at 36-37. She
stated that he was more of a father to them than their biological father. Tr. at 37. The
Individual testified that his past behavior haunts him. Tr. at 56. He claimed that he hung
with the “wrong crowd” in high school. Tr. at 58. He asserted that he turned his life
around when he started working at DOE. Tr. at 59. When questioned why he lied to the
OPM investigator, he responded, “I just lied. There is no reason behind it. I lied, and I
shouldn't have, and that's why we're here right now, to resolve the situation. There is --
there is no explanation to it. I just lied.” Tr. at 74-75.
In considering the evidence before me, I first looked to the Adjudicative Guidelines. As
an initial matter, I find that the Individual has been diagnosed, in November 2012, by a
qualified medical profession as having a mental condition which causes or may cause a
significant defect in judgment or reliability. DOE Ex. 4 at 9. Therefore, I cannot find
mitigation of the security concerns at issue here under Guideline I at ¶ 29(a)-(c), which
states that the “identified condition is readily controllable with treatment, and the
individual has demonstrated ongoing and consistent compliance with the treatment plan,”
“the individual has voluntarily entered counseling,” and finally, the Individual has
received a “recent opinion by a duly qualified mental health profession . . . that [his]
previous condition is under control or in remission.” While the DOE psychologist
indicated that Individual is on the correct path, he would like to see six months of joint
therapy with the Individual and his wife before he could possibly find that the Individual
is rehabilitated from the mental condition. The Individual is not currently in counseling
or a treatment program for his active mental condition. Therefore, I cannot find, based on
the evidence before me, that the Individual has mitigated the Criterion H concern raised
by his persistent lying and unreliable behavior.
Further, the Individual did not show that his past behavior, which continued to his
interview with the OPM investigator and during the PSI, was the result of a temporary
condition, as stipulated under Guideline I at ¶ 29 (d). Therefore, I cannot find that he has
mitigated the Criterion H concern.
Finally, the Adjudicative Guidelines indicate that the concern could be mitigated by a
showing that “there is no indication of a current problem.” Adjudicative Guideline I at
¶ 29 (e). As shown above, the Individual falsified information to the OPM investigator
and during the PSI, both of which occurred during the administrative review process.
Therefore, I cannot find that the Individual has mitigated the Criterion H concern.
The testimony of DOE psychologist has convinced me that the Individual is still suffering
from a mental condition with causes a significant defect in judgment or reliability. Based
on all the foregoing, I find that the Individual has not mitigated the security concerns
associated with Criterion H.
7
B. Criterion L
The Individual did not present any mitigating evidence regarding his past unreliable
behavior, which included his ten arrests or his failure to follow the law and pay his taxes.
His only statements regarding these issues were that his past “haunts me to this day.” Tr.
at 56. Further, he claimed that he “just lied” to the OPM investigator when he made the
false statements during the routine background check. Tr. at 74. Most of the events
raised by the LSO as security concerns under Criterion L, when considered separately,
may not be of sufficient importance to give rise to a valid security concern. However,
when considered together, the events indicate that the Individual has a cavalier attitude
toward his obligation to conform his behavior to legal requirements and to honor his
commitments. Such behavior does not correspond with the behavior of a security
clearance holder. Personnel Security Hearing, Case No. PSH-13-0015 (2013). The
Individual has not adequately addressed the DOE’s security concerns regarding his
personal conduct, especially given the recency of his false statements, which occurred
during the security clearance process. Therefore, I cannot find that the Individual has
mitigated the security concerns associated with Criterion L.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criteria H and L. After
considering all the relevant information, favorable and unfavorable, in a comprehensive
common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I have found that the Individual has not brought forth sufficient
evidence to mitigate these security concerns associated with Criteria H and L. I therefore
cannot find that granting the Individual’s access authorization will not endanger the
common defense and is clearly consistent with the national interest. Accordingly, I have
determined that the Individual’s access authorization should not be granted. The parties
may seek review of this Decision by an Appeal Panel under the regulations set forth at
10 C.F.R. § 710.28.
Janet R. H. Fishman
Hearing Officer
Office of Hearings and Appeals
Date: June 26, 2013