PSH-13-0044

*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: April 8, 2013 ) Case No.: PSH-13-0044
)
_________________________________________ )
Issued: July 26, 2013
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Hearing Officer Decision
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxx (hereinafter referred to as “the
individual”) to hold an access authorization1 under the Department of Energy’s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, “General Criteria and Procedures
for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.” As
fully discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s access
authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In November and December 2012, as part of a background investigation, the
Local Security Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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address concerns about the individual’s pattern of criminal conduct. On March 5, 2013, the LSO
sent a letter (Notification Letter) advising the individual that it possessed reliable information
that created substantial doubt regarding his eligibility to hold an access authorization. In an
attachment to the Notification Letter, the LSO explained that the derogatory information fell
within the purview of one potentially disqualifying criterion set forth in the security regulations
at 10 C.F.R. § 710.8, subsection (l) (hereinafter referred to as Criterion L).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the individual presented his own testimony and that of his supervisor. The DOE
counsel did not present any witnesses. The DOE and the individual presented a number of
written exhibits prior to the hearing.
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the
government has the burden of proving the defendant guilty beyond a reasonable doubt. Rather,
the standard in this proceeding places the burden on the individual because it is designed to
protect national security interests. This is not an easy burden for the individual to sustain. The
regulatory standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with
the national interest” standard for granting security clearances indicates “that security
determinations should err, if they must, on the side of denial”); Dorfmont v. Brown, 913 F.2d
1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the
issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that
restoring his access authorization “will not endanger the common defense and security and will
be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a very
broad range of evidence at personnel security hearings. Even appropriate hearsay may be
admitted. 10 C.F.R. § 710.26(h). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
2 Criterion L relates to information that a person has “[e]ngaged in any unusual conduct or is subject to any
circumstances which tend to show that the individual is not honest, reliable, or trustworthy; or which furnishes
reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause
the individual to act contrary to the best interests of the national security . . .” 10 C.F.R. § 710.8(l).
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B. Basis for 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 in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites one potentially disqualifying criterion as the basis for
suspending the individual’s security clearance, Criterion L. To support its reliance on Criterion
L, the LSO alleges that in May 2012, the individual was arrested and charged with Driving
Under the Influence (DUI). The LSO also alleges that, in January 2004 and in April 2002, the
individual was arrested and charged with DUI and Hit and Run. Criminal activity creates doubt
about a person’s judgment, reliability, and trustworthiness and by its very nature, it calls into
question a person’s ability or willingness to comply with laws, rules and regulations. See
Guideline J of the Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information issued on December 29, 2005, by the Assistant to the President for
National Security Affairs, The White House (Adjudicative Guidelines).
IV. Findings of Fact
On May 4, 2012, the individual was arrested and charged with Driving Under the Influence
(DUI). He was given three years of probation, his license was suspended for a year and he was
ordered to install an ignition interlock device (IID). The individual was also ordered to attend a
3-month DUI class and perform 60 hours of community service in addition to paying $1,924 in
fines. This information prompted DOE to conduct PSIs of the individual on November 15, 2012,
and December 11, 2012. During these interviews, the individual admitted that he had not
installed the IID and continues to drive with a suspended license. DOE Exh. 1. The individual
also admitted that in April 2002 and January 2004, he was arrested and charged with DUI. In
addition to these admissions during his PSIs, during an Office of Personnel Management
interview in August 2011, the individual indicated that he never intends to drink and operate a
vehicle again. Despite this statement, he was charged with DUI in May 2012. Id.
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V. Analysis
I have thoroughly considered the record in this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the individual’s eligibility for access authorization, I have been guided by the applicable factors
prescribed in 10 C.F.R. § 710.7(c)3 and the Adjudicative Guidelines. After due deliberation, I
have determined that the individual’s access authorization should not be restored. I cannot find
that restoring the individual’s DOE security clearance will not endanger the common defense
and security and is clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The
specific findings that I make in support of this decision are discussed below.
Criterion L
The DOE’s concerns under Criterion L are that the individual was arrested and charged with
three separate DUIs in 2002, 2004 and 2012, respectively. As a consequence of his 2012 DUI,
the individual was given three years probation, his license was suspended for a year and he was
ordered to install an IID. He later admitted that he had not installed the IID and continued to
drive on a suspended license.
During the hearing, although the individual acknowledged that he was charged with three DUIs,
he stated, however, that he was only convicted of the 2002 DUI and that the charges for the 2004
and 2012 DUIs were reduced to charges of Wet and Reckless due to his blood alcohol content at
the time. Transcript of Hearing (Tr.) at 20 and 21. Nevertheless, the individual testified that he
was embarrassed by his conduct. With respect to his May 2012 arrest, the individual testified
that he was fined, asked to complete 60 hours of community service and complete three months
of a DUI program. According to the individual, as of the date of the hearing, he has completed
nine months of DUI classes (as required by the local Department of Motor Vehicles (DMV)),
completed 60 hours of community service and is on track to pay off his fine on or before the due
date of January 20, 2014. Id. at 22, Indiv. Exh. A. The individual acknowledged that he did not
immediately install an IID, but explained that he was given conflicting information when he
called DMV about the process of installing the IID so that he could obtain a restrictive license.
Id. at 23. According to the individual, he installed the device in February 2013, about nine
months after his arrest. Id. at 31. He further admitted that he drove on a suspended license on
3 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct, the age
and maturity at the time of the conduct, the voluntariness of his participation, the absence or presence of
rehabilitation or reformation and other pertinent behavioral changes, the motivation for the conduct, the potential for
pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence, and other relevant and
material factors.
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occasion before installing his IID, but felt that he had to in order to get to work which was over
22 miles away. Id. at 25. The individual testified that he understands the importance of
following rules. His supervisor, who testified on his behalf during the hearing, stated that the
individual is a reliable employee who follows rules in his workplace. Finally, the individual
testified that he has learned his lesson from these arrests and has no future intention of drinking
and driving. He stated that his license suspension will end in about a month, and that he has
fulfilled one year of his three-year probationary period. Id. at 41.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
pattern of criminal conduct are (1) so much time has elapsed since the criminal behavior
happened, or it happened under such unusual circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment; (2) the person
was pressured or coerced into committing the act and those pressures are no longer present in the
person’s life; (3) evidence that the person did not commit the offense; and (4) there is evidence
of successful rehabilitation; including but not limited to the passage of time without recurrence
of criminal activity, remorse or restitution, job training or higher education, good employment
record, or constructive community involvement. Adjudicative Guideline J at ¶ 32 (a)-(d). None
of these mitigating factors apply in this case. First, during the hearing the individual
acknowledged and accepted full responsibility for his criminal conduct. Second, the individual’s
May 2012 DUI was recent and there has not been a sufficient passage of time since the criminal
behavior occurred. Third, although he has fulfilled some of the terms of his sentence, by
completing 60 hours of community service and completing a DUI program, there is no evidence
of successful rehabilitation at this time. The individual has only served one year of a three-year
probationary period. Given that the individual’s third alcohol arrest is relatively recent and that
he has only fulfilled one year of a three year probationary period, I am not yet convinced that the
individual’s behavior is unlikely to recur. After considering the “whole person,” I am not
convinced that the DOE can rely on the individual’s ability to make sound judgment calls
regarding the safeguarding of classified information. See Adjudicative Guidelines at (2)a. I
therefore find that the individual has not sufficiently mitigated the LSO’s concerns under
Criterion L.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Criterion L. After considering
all the relevant information, favorable and unfavorable in a comprehensive common-sense
manner, including weighing all the testimony and other evidence presented at the hearing, I
cannot find that the individual has brought forth convincing evidence to mitigate the security
concerns associated with Criterion L. I therefore cannot find that restoring the individual’s
access authorization would not endanger the common defense and security and would be
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consistent with the national interest. Accordingly, I find that the individual’s access
authorization should not be restored. The parties may seek review of this Decision by an Appeal
Panel under the regulations set forth at 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Hearing Officer
Officer of Hearings and Appeals
Date: July 26, 2013