PSH-13-0056

*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: May 1, 2013 ) Case No.: PSH-13-0056
)
____________________________________)
Issued: August 13, 2013
______________________
Hearing Officer Decision
______________________
Richard A. Cronin, Jr., 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 DOE should not
restore the individual’s access authorization at this time.2
I. BACKGROUND
The individual is a contractor employee at a DOE facility and held an access authorization until
it was suspended. In October 2012, the DOE discovered that the individual’s government-issued
computer contained sexually explicit material. Exhibit 7 at 1. Subsequently, on January 23,
2013, the Local Security Office (LSO) conducted an interview (PSI) with the individual in order
to address issues surrounding his government-issued computer misuse, his sexual behavior, and
his previously disclosed history of depression. Exhibit 9. The LSO referred the individual to a
DOE-contractor psychologist (DOE psychologist) for a forensic examination in February 2013.
Exhibit 4. In a March 2013 report (Report), the DOE psychologist opined that the individual
suffers from Dysthymic Disorder, Major Depressive Disorder, Recurrent (Moderate, without
Psychotic Features) and Partner Relational Problem. Id. On April 2, 2013, the LSO issued a
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 be referred to in this
Decision as access authorization or a security clearance.
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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Notification Letter informing the individual that it possessed reliable information that created a
substantial doubt about the individual’s continued eligibility for access authorization and it was
therefore suspending the individual’s security clearance. Exhibit 1. The Notification Letter also
informed the individual that he was entitled to a hearing before a Hearing Officer.
The individual requested a hearing in this matter. The LSO forwarded this request to OHA, and
the OHA Director appointed me the Hearing Officer. The DOE introduced nine exhibits into the
record of this proceeding. The individual introduced one exhibit and presented the testimony of
six witnesses, in addition to his own testimony.
II. FINDINGS OF FACT AND ASSOCIATED SECURITY CONCERNS
The Part 710 regulations require that I “make specific findings based upon the record as to the
validity of each of the allegations” in the Notification Letter. 10 C.F.R. § 710.27(c). In this
case, the Notification Letter describes the listed derogatory information as falling within
paragraphs (h) and (l) of the criteria for eligibility for access to classified matter or special
nuclear matter set forth at 10 C.F.R. § 710.8.3 Exhibit 1. The individual essentially does not
dispute the factual allegations contained in the Notification Letter. I set forth my factual findings
regarding the allegations in the Notification Letter below.
A. Criterion H
In the Notification Letter, the LSO relies on the DOE psychologist’s opinion to support its
reliance on Criterion H. In her Report, the DOE psychologist diagnosed the individual as
suffering from Dysthymic Disorder, Major Depressive Disorder, Recurrent (Moderate, without
Psychotic Features) and Partner Relational Problem. Exhibit 4. In making these diagnoses, she
described her clinical findings and noted the individual’s history of depressive illness and his
intermittent and unsuccessful attempts to use antidepressant medications to treat his condition.
Exhibit 4 at 3-4. She further concluded that these conditions have caused and may continue to
cause a significant defect in the individual’s judgment and reliability given the fact that, in her
opinion, the individual has not managed his treatment of these disorders very well. Exhibit 4 at 6.
I find that there was adequate information to justify the DOE’s invocation of Criterion H. It is
well settled that an emotional, mental, and personality condition can impair judgment, reliability,
or trustworthiness. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information issued by the Assistant to the President for National Security Affairs, The
White House (December 29, 2005) (Adjudicative Guidelines), Guideline I; Personnel Security
Hearing, Case No. PSH-12-0045 (2012).
3 Paragraph (h) describes derogatory information indicating that an individual has “[a]n 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. § 708.8(l). Paragraph (l) describes derogatory information
indicating that an individual 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. § 708.8(l).
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B. Criterion L
The Criterion L allegations contained in the Notification Letter center around the individual’s
misuse of a government-issued computer to view sexually explicit materials. On October 4,
2012, the DOE received an allegation that the individual was misusing his government-issued
computer. Exhibit 7 at 2. A subsequent investigation determined that the individual had stored
227 sexually explicit photos and video/movie clips on his government-issued computer. Exhibit
7 at 7. During the January 23, 2013, PSI, the individual admitted that the DOE had found
sexually explicit material on his government-issued computer in October 2012. Exhibit 6. The
individual also admitted that he, in fact, had downloaded, viewed and stored sexually explicit
material on his computer.4 Exhibit 6. He stated that he knew that viewing such material was
against DOE policy. Exhibit 9 at 27. Further, the individual stated during the PSI that, in 1998,
he had used his government-issued computer to view a website containing sexually explicit
material and was consequently formally reprimanded and his annual raise was withheld. Exhibit
9 at 25-26; Exhibit 8. On January 28, 2013, the individual was reprimanded for the recent
misuse of his government-issued computer and was suspended for two weeks. Exhibit 6.
Given the evidence before me, I find that the LSO had ample grounds to invoke Criterion L. The
improper use of a government-issued computer for viewing sexually explicit material raises
security concerns about an individual's reliability and trustworthiness, calling into question the
willingness or ability to properly protect sensitive systems, networks, and information. See
Adjudicative Guidelines, Guideline M, ¶ 39; Personnel Security Hearing, Case No. PSH-12-
0098 (2013). Therefore, the individual’s viewing of sexually explicit material at his workplace
also raises significant questions about his reliability, trustworthiness and his ability to protect
classified information. Accordingly, the LSO properly invoked Criterion L.
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 and unfavorable, that has a bearing on the question of whether restoring the
individual’s 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.
4 The individual contested the LSO’s assertion in the Notification Letter that he admitted that from 2005
until October 2012, he viewed sexually explicit material on his government computer up to twice a day. See Exhibit
2. Rather, he claims that beginning in 2007 or 2008, he checked his personal email approximately twice a day, and
that only sometimes he received and viewed sexually explicit material that was in his inbox. When he checked his
personal email, he often did not view any sexually explicit material. Upon review of the January 23, 2013, PSI, I
find that the individual admitted checking his emails once or twice a day but did not admit that on each occasion he
would view pornographic materials. See Exhibit 9 at 23.
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§ 710.7(c). In considering these factors, the Hearing Officer also consults the Adjudicative
Guidelines that set forth a more comprehensive listing of relevant factors.
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). 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. ANALYSIS
At the hearing, the individual presented testimony to establish that the Criteria H and L concerns
have been resolved through his participation in therapy to treat his underlying psychological
problems. Nonetheless, as explained below, I cannot find that the individual has adequately
mitigated the Criteria H and L security concerns raised by the derogatory information contained
in the Notification Letter.
A. Criterion H - Psychological Conditions
At the hearing, the Employee Assistance Program (EAP) counselor, who began seeing the
individual on April 18, 2013, testified that the individual did not meet the criteria for Major
Depressive Disorder. Transcript of Hearing (Tr.) at 41. She further stated that the individual
does not satisfy all the criteria for Dysthymic Disorder or Partner Relational Problem. Tr. at 41.
However, she was still “generally fine” with the DOE psychologist’s report, and she diagnosed
the individual as experiencing “occupational problem[s].” Tr. at 31. The EAP counselor
concluded that the individual has a positive prognosis because he has confronted his problems
and sought adequate treatment. Tr. at 35.
A psychiatrist, who the individual employed to conduct an evaluation, also testified.5 Tr. at 48.
He agrees with the DOE’s psychologist’s diagnosis of the individual as having Dysthymic
Disorder, Major Depressive Disorder (not severe), and Partner Relational Problem. Tr. at 49.
Moreover, it is his opinion that the individual’s mood problems have been recurrent for 20 years,
which causes his depressive symptoms to worsen at times, but that “he acted appropriately each
time by seeking proper medical attention,” which reflects his good judgment. Tr. at 50. He
stated that the Dysthymic Disorder is chronic and that it could worsen at times. Tr. at 52.
Furthermore, the psychiatrist explained that the individual is “committed to the treatment, he’s
going regularly, and I think that’s a good sign.” Tr. at 53. He concluded that there are many
indications that “even under stressful conditions, that [the individual] would tend to resort to
more appropriate coping devices [than viewing pornography] and use good judgment.” Tr. at 64.
The individual’s psychotherapist, who he began seeing weekly beginning on June 6, 2013,
testified that he agreed with the DOE psychologist’s report. He went on to explain that the
individual is depressed and that his condition could be treated if he continues with therapy. Tr.
5 The psychiatrist was not employed to provide treatment to the individual.
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at 70. However, he opined that the individual has not acquired all the “skills and tools . . . to
manage [his] depression and mood disorder,” but that is due to the fact that he only had four
sessions. Tr. at 71. With more therapy, he should develop those skills. Tr. at 71. While the
psychotherapist stated that the individual’s prognosis is positive, he asserted that it would take a
couple more months before he could learn to manage his depression and a few additional months
of maintenance. Tr. at 71-72, 75. Further, he expressed that the individual’s problem with
viewing sexually explicit material on his government-issued computer resulted from his
depression not being treated. Tr. at 73. Finally, he recommended that the individual seek a
second opinion from a psychiatrist, with regard to the possibility of being prescribed medication
for his depression.6 Tr. at 77.
At the hearing, the DOE psychologist agreed that the individual should consult with a
psychiatrist about being prescribed medication to treat his depression. Tr. at 119. In addition,
she stated that the individual’s Major Depressive Disorder is in partial remission, and therefore,
he currently does not meet the full criteria for that diagnosis. Tr. at 119. In all, while the
individual’s treatment plan is effective, it is too soon for the DOE psychologist to conclude that
his risk for relapse is low. Tr. at 120. She also testified that the individual should consider
marriage counseling. Tr. at 123.
The individual testified that he intends to continue with therapy to treat his depression and that
he has already learned techniques to recognize the symptoms of depression and to address them.
Tr. at 97. He also acknowledges the mistakes that he has made in the past, explaining that he is
now “much more aware” and “looking more diligently at alternatives to the old bad habits.” Tr.
at 98.
While I commend the individual for seeking therapy and learning new ways to cope with his
depression, the individual has not had enough therapy for me to conclude that the security
concerns associated with Criterion H have been mitigated. Based on his testimony, it is clear that
the individual understands the benefits of therapy for treating his depression and is committed to
his treatment plan. Nonetheless, his psychotherapist and the DOE psychologist opined that the
individual needs additional therapy, at least several more months, before they can conclude that
there is a low probability of recurrence or exacerbation of his depression. Tr. at 71-72, 75, 120.
Further, I find the testimony of the DOE psychologist, psychiatrist and psychotherapist more
convincing on the issue on the state of the individual’s recovery than that of the EAP counselor.
Given the expert testimony regarding the state of the individual’s recovery, I cannot conclude
that his psychological problems are sufficiently under control to mitigate the Criterion H security
concerns.
B. Criterion L – Misuse of a Government-Issued Computer
During the hearing, the individual admitted to using his government-issued computer to view
sexually explicit material through his personal email account. Tr. at 96. The individual
acknowledged that viewing the sexually explicit material on his government-issued computer
was a “failure” on his part and a “stupid mistake.” Tr. at 96. He explained that he viewed the
images out of habit of checking his personal email account at work and consequently, he
deactivated the email account that contained the sexual images. Tr. at 102. Therefore, he claims
6 The individual was previously advised by a physician that he should not use prescription anti-depressants
because of a pre-existing medical condition.
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that he will not view such material on his computer again, and that he now recognizes the
consequences for engaging in such behavior. Tr. at 103.
As additional mitigation, the individual presented testimony from experts asserting that his
viewing of pornographic material at work is not a major concern and was a result of his
depressive disorders. The individual’s psychiatrist testified that pornography is not a significant
coping device for the individual. Tr. at 56. While he believes it presents some questionable
judgment on the part of the individual, it does not reflect a major concern and instead, presents a
low indication that the individual does not exercise good judgment. Tr. at 57-59.
The individual’s psychotherapist testified that after evaluating and treating the individual for four
sessions, he believes that the individual’s mood disorder, primarily depression, has been driving
the recent lapses in judgment. Tr. at 69-70. The individual’s depression, his inability to manage
his depression and the individual’s hopelessness and boredom drive his desire to view
pornography. Tr. at 73. He opined that the individual does not suffer from any type of sexual
addiction and thus he believes that he is unlikely to repeat a pattern of viewing pornography
provided that the individual completes a course of treatment for his underlying depression. Tr. at
70-71.
None of the mitigating factors listed in Adjudicatory Guidelines’ Guideline M (Use of
Information Technology Systems) apply to the case before me. The individual’s misuse of his
government-issued computer is recent and his misuse was not an unintentional or inadvertent.
See Adjudicatory Guidelines, Guideline M, ¶ 41(a), (c). Nor can I find that the individual’s
misuse of his computer was minor and done in the interest of organizational efficiency. Id. at
¶ 41(b).
I find that the individual’s viewing of sexually explicit material on his government-issued
computer is a result of his mood disorder. Tr. at 36. The psychotherapist’s testimony is
convincing on this issue and is supported by the individual’s statements in the January 23, 2013,
PSI indicating that he viewed pornography because of “boredom” or a desire to “escape from
reality.” Exhibit 9 at 37-38. Nonetheless, as discussed above, I find that the individual has not
resolved the concerns raised by his mood disorder.
Because none of the Adjudicatory Guidelines’ mitigating factors apply in this case and the
individual’s underlying psychological condition has not been resolved, I cannot find that the
concerns associated with Criterion L have been sufficiently mitigated.7
V. CONCLUSION
I find that the Criteria H and L derogatory information described in the Notification Letter raises
serious security concerns regarding the individual. After considering all the relevant information,
7 Even if the individual’s poor judgment in viewing pornography at work is not intrinsically related to his
depressive disorders, I could not find that the individual has mitigated the associated Criterion L concerns. The
individual’s conduct in viewing pornography using government-issued computers is of long duration and the
individual has only a limited period of time demonstrating reformed behavior. Further, the DOE psychologist’s
Report is somewhat concerning given her finding that the individual has “no conscious thought behind it [viewing
pornography]” and that the individual’s lack of awareness makes him less likely to be able to control his behavior
regarding viewing pornography at work. Ex. 4 at 5; see Ex. 9 at 58.
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favorable and unfavorable, in a comprehensive common-sense manner, including weighing all
the testimony and other evidence presented at the hearing, I also find that the individual has not
brought forth sufficient evidence to mitigate the security concern raised by the Criteria H and L
derogatory information. I therefore cannot find that restoring 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
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.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: August 13, 2013