PSH-13-0058

*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 10, 2013 ) Case No.: PSH-13-0058
)
_________________________________________ )
Issued: August 16, 2013
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Hearing Officer Decision
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Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (“the Individual”) to hold a
Department of Energy (DOE) access authorization.1 This Decision will consider whether, based
on the testimony and other evidence presented in this proceeding, the Individual should be
granted DOE access authorization. For the reasons detailed below, I find that the DOE should
not grant the Individual access authorization.
I. BACKGROUND
The Individual works for a DOE contractor in a janitorial position, and is currently an applicant
for DOE access authorization. DOE Exhibit (Ex.) 3. As part of his application for access
authorization, the Individual completed Questionnaires for National Security Positions (QNSPs)
in June 2012 and October 2012. DOE Exs. 5, 6. During the application process, a routine
background investigation performed by an Office of Personnel Management (OPM) investigator
(hereinafter “the OPM investigation” or “the background investigation”) revealed that the
Individual failed to disclose certain required information on the QNSPs, prompting the Local
Security Office (LSO) to request that the Individual participate in a Personnel Security Interview
(PSI) in January 2013. DOE Ex. 7; see also DOE Ex. 8 (the OPM Report). After reviewing the
Individual’s complete personnel security file, the LSO notified the Individual that there existed
derogatory information that raised security concerns under 10 C.F.R. §§ 710.8 (f) and (l)
(Criteria F and L, respectively). See DOE Ex. 1 (Notification Letter, April 9, 2013). The
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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Notification Letter also informed the Individual that he was entitled to a hearing before a
Hearing Officer in order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded his request
to the Office of Hearings and Appeals, and I was appointed as Hearing Officer. At the hearing,
the Individual testified on his own behalf, and offered the testimony of one witness, his wife.2
The DOE counsel presented no witnesses, and submitted eight exhibits into the record (DOE
Exs. 1-8). See Transcript of Hearing, Case No. PSH-13-0058 (hereinafter cited as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including “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 of the individual at the time of the conduct; the
voluntariness of 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,” and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). In considering these factors, the Hearing Officer also consults adjudicative
guidelines that set forth a more comprehensive listing of relevant factors and considerations. See
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).
Ultimately, the decision concerning eligibility is “a comprehensive, common-sense judgment
made after consideration of all relevant information, favorable and unfavorable . . . .” 10 C.F.R.
§ 710.7(a). In order to render a decision in the Individual’s favor, the Hearing Officer must find
that “the grant or restoration of access authorization to the individual will not endanger the
common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
§ 710.27(a). “Any doubt as to an individual’s access authorization eligibility shall be resolved in
favor of the national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531
(1988) (the “clearly consistent with the interests of national security” test indicates that “security
clearance determinations should err, if they must, on the side of denials”).
2 In a June 16, 2013, email, the Individual indicated that he wished to submit his response to the Notification Letter
as a hearing exhibit. However, that document was already in the record, having been previously submitted by the
DOE Counsel. See DOE Exhibit 2. In order to keep the record free of unnecessarily duplicative documents, it has
not been re-entered into the record as a separate Individual’s Exhibit.
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III. FINDINGS OF FACT
A. The Individual’s History of Arrests and Citations and his Recent Statements
Regarding his Prior Conduct
The Individual’s criminal record purportedly includes the following arrests and/or criminal
charges, spanning a period of over 40 years: (1) December1969 – Drinking in a Motor Vehicle,
Resisting Arrest, No Tail Lights, and Interference with an Officer;3 (2) February 1971 –
Siphoning Gasoline; (3) August 1971 – Driving While Intoxicated (DWI), Reckless Driving, and
No Driver’s License; (3) October 1983 – DWI, Failure to Maintain, and Suspended Driver’s
License; and DWI, Driving on a Suspended License, and Driving within Traffic Lane;4 (4)
March 1985 – DWI, Driving on a Suspended License, Driving on the Left Side of Road, Proof of
Financial Responsibility, Failure to Pay Fines Imposed, and Failure to Complete Community
Service; (5) April 1985 – Animal License Required, Failure to Obey Notice to Appear, and
Failure to Appear; (6) June 1985 – Driving on a Suspended License; (7) January 1986 – Battery,
Failure to Pay Fines Imposed, Failure to Comply with Domestic Violence Program, and Failure
to Appear in Court; (8) February 1987 – DWI, Proof of Financial Responsibility, No Evidence
of Registration, and Driving on a Revoked License; (9) March 1987 – Controlled Substance
Prohibited, Failure to Appear, and Failure to Schedule Community Service; (10) March 1989 –
DWI, Spotlight Glaring Beam, Driving Within Traffic Lane, and Driving on a Suspended
License; (11) February 1996 – Battery Against a Household Member; (12) March 1997 – No
Seatbelt/No Insurance; (13) April 1998 – Battery on a Household Member; (14) August 1998 –
False Imprisonment and Aggravated Battery on a Household Member; (15) November 1998 –
Aggravated Battery on a Household Member (Felony); (16) June 1999 – Unauthorized Use and
Penalties; (17) August 1999 – Battery on a Household Member (Felony); (18) August 2003 –
Aggravated Battery on a Household Member. See DOE Ex. 1; see also DOE Exs. 3, 4, 8.
During the January 2013 PSI, after considerable discussion regarding his extensive pattern of
past criminal conduct, the Individual attributed many of the older incidents to former substance
abuse problems for which he was successfully treated many years ago.5 DOE Ex. 7 at 266-67.
With respect to the domestic violence incidents, the Individual noted during the PSI that they all
involved his ex-wife. He alleged that his former spouse was abusive toward him and initiated
the altercations, and he had no choice but to respond in kind. Id. at 250-28. Finally, the
3 The December 1969 charge is identified alternately as “Drinking in a Motor Vehicle …” and “Driving in a Motor
Vehicle …” throughout the record. See DOE Exs. 3, 4, 8.
4 The Notification Letter lists two arrests in October 1983, occurring within five days of each other. Upon close
review of the Individual’s criminal history information detailed in the OPM Report, there appears to have been only
one arrest in October 1983 for DWI and related charges. The court judgment on the charges was deferred pending
the Individual’s completion of supervised probation. DOE Ex. 8. However, when the Individual was arrested in
March 1985 for DWI, in violation of the terms of his probation, the judgment on the October 1983 DWI-related
charges was imposed. Id. That ostensibly explains two arrests within days of each other for nearly identical charges
in October 1983. Nevertheless, there is no probative evidence in the record confirming that the two October 1983
entries in the Individual’s criminal record are, in fact, duplicative.
5 The Individual’s past substance abuse and subsequent treatment are not at issue in this proceeding.
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Individual was unable to give assurances during the PSI that he would not respond in the same
way in the future if provoked under similar circumstances. Id. at 263, 68.
B. The Individual’s Alleged Misrepresentations, Falsifications, or Omissions
Section 22 of the QNSP contains subsections of questions specifically pertaining to an
applicant’s criminal history. DOE Exs. 5, 6; see also DOE Ex. 8. The introduction to Section 22
expressly states, “for this section[,] report information regardless of whether the record in your
case has been sealed, expunged, or otherwise stricken from the court record, or the charge was
dismissed.” DOE Ex. 8 at 41. In a subsection titled “Police Record,” the form requires
disclosure of various types of arrests, charges, and citations that an applicant may have incurred
within the last seven years. Id. The next subsection, titled “Police Record – EVER,” requires an
applicant to list any arrests, charges, or citations that an applicant has incurred that did not fall
within the scope of questions in the previous subsection. Id. at 41-42. Finally, in a subsection
titled “Police Record – Summary,” the form restates the previous questions. Id. at 47.
In response to the various questions in Section 22, the Individual listed some offenses and related
charges, including three DWI arrests (March 1985, February 1987, and March 1989) and two
arrests related to domestic violence (February 1996 and August 2003). DOE Ex. 8 at 41-48,
192-96. The Individual omitted from the questionnaires the following alcohol-related arrests
and/or charges: (1) December1969 – Drinking in a Motor Vehicle, Resisting Arrest, No Tail
Lights, and Interference with an Officer; (2) August 1971 – Driving While Intoxicated (DWI),
Reckless Driving, and No Driver’s License; (3) October 1983 – DWI, Failure to Maintain, and
Suspended Driver’s License; and DWI, Driving on a Suspended License, and Driving within
Traffic Lane; (4) March 1999 – DWI, Spotlight Glaring Beam, Driving Within Traffic Lane, and
Driving on a Suspended License. DOE Ex. 1; see also DOE Exs 5, 6. In addition, the Individual
did not list the following domestic violence arrests and charges on his questionnaires: (1)
January 1986 – Battery, Failure to Pay Fines Imposed, Failure to Comply with Domestic
Violence Program, and Failure to Appear in Court; (2) April 1998 – Battery on a Household
Member; (3) August 1998 – False Imprisonment and Aggravated Battery on a Household
Member; (4) November 1998 – Aggravated Battery on a Household Member (Felony); (5)
August 1999 – Battery on a Household Member (Felony). Id.
In addition, the QNSP requires disclosure of certain employment-related information, such as
written warnings, reprimands, suspensions, or other disciplinary actions. See DOE Ex. 8 at 16-
20 (Section 13A, “Employment Activities” at 16-20; Section 13C, “Employment Record –
Summary” at 20). On both 2012 QNSPs, the Individual omitted reprimands that he received in
October 2010 and a March 2011 while working for a previous employer. Id. at 16-20, 136-140;
DOE Ex. 1.
IV. THE NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
As stated above, after reviewing the Individual’s personnel security file, the LSO issued a
Notification Letter identifying security concerns under Criteria F and L of the Part 710
regulations. DOE Ex. 1.
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Criterion F pertains to deliberate false statements or misrepresentations by an individual during
the course of an official inquiry regarding the individual’s eligibility for access authorization,
including responses given during personnel security interviews or on security questionnaires.
10 C.F.R § 710.8(f). According to the Adjudicative Guidelines, “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. Of special interest in any failure to provide truthful and candid
answers during the security clearance process . . . .” Adjudicative Guidelines, Guideline E, ¶ 15
(emphasis added). The “deliberate omission, concealment, or falsification of relevant and
material facts from any personnel security questionnaire” is an example of conduct which may
raise such security concerns. Id. at ¶ 16(b). Similarly, Criterion L concerns conduct tending to
show that the Individual was “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). It is well-established that criminal conduct raises security concerns under Criterion L.
Such conduct “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.” See Adjudicative Guidelines, Guideline J, ¶ 30.
Given that the Individual’s June 2012 and October 2012 QNSPs contain several omissions
regarding his criminal history and other required information, I find that the LSO properly
invoked Criterion F. Moreover, in light of the Individual’s extensive history of criminal conduct,
together with his recent statements during the PSI justifying his past domestic violence and his
inability to give assurances that he would not repeat such conduct in the future if provoked, the
LSO had ample grounds to invoke Criterion L.
V. ANALYSIS
In making a determination regarding the Individual's eligibility for DOE access authorization, I
have thoroughly considered the record in this proceeding, including the hearing testimony and
the documentary evidence. For the reasons set forth below, I am unable to find that granting the
Individual DOE 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).
A. Criterion F – The Individual’s Allegedly Deliberate Dishonesty on the QNSPs
The Individual’s allegedly deliberate omissions of certain information regarding his criminal and
employment histories on his June and October 2012 QNSPs form the basis for the security
concerns regarding his honesty and trustworthiness raised in the Notification Letter under
Criterion F.
1. The Individual’s Mitigating Evidence
The Individual testified that he did not deliberately omit information regarding his past arrests
and employment-related incidents on the questionnaires. Tr. at 47. Throughout his testimony,
he offered a number of explanations for his omissions. First, he alleged that he believed he was
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only supposed to list items for which he had “a complete record,” such as correct dates and other
information, and alleged that he omitted the arrests and incidents for which he could not recall
details. Id. Next, he maintained that, with respect to certain omissions, such as the DWI arrests,
he believed the question simply required him to indicate whether he had ever been arrested for
that particular type of offense, not that he list every arrest of that type. Tr. at 50. The Individual
also attributed certain arrests on his record to a neighbor who, according to the Individual,
fraudulently obtained the Individual’s social security number and used it to identify himself
during his own arrests. Tr. at 50-51. The Individual testified that he determined it was not
necessary to disclose charges for offenses that he himself did not commit. Id. However, he
conceded that, regardless of whether he committed the offenses, the charges remain on his
record, and, therefore, he was required to report them on the QNSPs.6 Tr. at 52. With respect to
the omitted domestic violence arrests and/or charges, the Individual alleged that he did not list
them because he believed that his ex-wife should have been charged instead of him since she
instigated the incidents. Tr. at 55. Finally, the Individual also attributed the omissions generally
to his faulty memory and his resignation over the fact that his record rendered him ineligible for
a clearance regardless of what he listed on the forms. Tr. at 64, 65.
The Individual’s wife testified that she helped him complete the QNSPs. Tr. at 11. She stated
that they spent considerable time completing forms, and “did the best [they] could with the
information [they] could gather to try to answer all the questions.” Tr. at 11-12. The
Individual’s wife stated that they did not make any changes in their responses between the June
2012 QNSP and the October 2012 QNSP. Tr. at 14. She indicated that, although the Individual
did not recollect many details of his criminal history due to the passage of time, he knew that
“there might be other [arrests].” Tr. at 19. She stated that they had some information about his
past arrests and, although she tried to look up his court records on the internet, they “didn’t really
have any luck trying to find things on the computer.” Tr. at 18-19, 22. She added, “we weren’t
really trying to hide anything.” Tr. at 20. The Individual’s wife acknowledged that the
Individual did not make any additional efforts beyond her internet search to find more complete
information regarding his criminal record, such as visiting the police station to obtain an accurate
copy of his arrest record. Tr. at 29. She stated that they discussed it, but he would have to go
request the information himself and they believed that the Individual could not take a day off
work to go to the police station because he was in a new job. Id. In addition, in contradiction to
the Individual’s testimony, the Individual’s wife testified that both she and the Individual
understood that the QNSP required disclosure of every offense, rather than simply an indication
of whether he had ever been arrested for a particular type of offense, or information on offenses
for which he had a detailed record. Tr. at 30-31.
2. Whether the Individual Has Mitigated the Criterion F Concerns
In light of the Individual’s assertion that his omissions were not an intentional attempt to
withhold information during the security clearance application process, I must consider first the
issue of “deliberateness.” See 10 C.F.R. § 710.8(f) (derogatory information includes evidence
6 The Individual provided no corroborating evidence to support his assertions regarding his allegedly compromised
social security number. For example, the charges that are for offenses that the Individual attributes to his neighbor
occurred 15 to 20 years ago, yet there is no evidence in the record that the Individual has made any attempts to clear
his record of those purportedly erroneous charges. See, e.g., Tr. at 50-51, DOE Ex. 7 at 272-73.
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that an individual “deliberately misrepresented, falsified, or omitted significant information from
. . . a [QNSP] . . . .”) (emphasis added). The absence of the requisite element of “deliberateness”
by an individual who has allegedly misrepresented, falsified, or omitted required information is
sufficient to mitigate the related Criterion F concerns. See Personnel Security Hearing, Case No.
TSO-0983 (2011).
In evaluating the evidence before me, the Part 710 regulations direct me to consider, inter alia,
“the demeanor of the witnesses who have testified at the hearing, the probability or likelihood of
the truth of their testimony, [and] their credibility.” 10 C.F.R. § 710.27(b). In this case, the
Individual’s varying explanations regarding the omissions were uncorroborated or, in some
instances, contradicted outright by the evidence in the record. Consequently, his attempts to
justify his failure to disclose significant required information appear disingenuous and, together
with my observations of the Individual’s demeanor and candor at the hearing, leave me with
serious doubts as to the credibility of the his testimony. Therefore, I am unable to accord much
weight, if any, to his testimony.
In addition, the Individual’s actions belie his testimony that his omissions were not a deliberate
attempt to withhold required information. It is undisputed that the Individual knew when he
submitted the first QNSP in June 2012 that his responses were inaccurate, incomplete, or both.
Then, four months later in October 2012, he submitted the second QNSP again without altering
his responses regarding his criminal history, or undertaking any additional efforts to obtain the
necessary information, or giving any indication on the questionnaire that the information was
incomplete. To the contrary, the evidence indicates that he hoped that the missing information
would not be discovered during the background investigation. This behavior is inapposite to the
honesty and forthrightness expected of clearance-holders. Further, the Individual expressly
stated during the PSI that, for various reasons, he intentionally omitted the information on the
QNSPs. Although the Individual testified that his admission during the PSI was prompted by the
interviewer, the record indicates otherwise. See DOE Ex. 7 (PSI Transcript) at 289-295 (wherein
the Individual stated that when he completed the forms he believed that the omitted information
would not come to light, was “meaningless” and not necessary to report, and/or might
jeopardize his ability to obtain a security clearance); see also DOE Ex. 8 at 103-105, 115. (OPM
Report, Personal Subject Interview, summarizing Individual’s explanations of his omissions on
QNSPs of DWI arrests (“[the Individual] could not find court records for the others and was
hoping that they would not be discovered during the investigation”), domestic violence arrests
(“he only listed the two offenses on the [QNSP] because he could not find records for the other
offenses and was hoping that the others would not be revealed in the investigation”), and, the
omissions in generally (“He did not think that omitting this information would matter that much .
. . [he] felt that if he disclosed all of his past arrests, he might not get the job.”)).
Although the Individual’s wife testified that the Individual did not intentionally withhold
information, her testimony is outweighed by the other evidence in the record. Accordingly, I
must conclude that the Individual’s omissions on his QNSPs were deliberate. The remaining
question is whether the Individual has brought forward sufficient evidence to mitigate the
security concerns raised by such deliberately untruthful conduct.
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According to the Adjudicative Guidelines, among the several examples of conditions which may
serve to mitigate security concerns raised by an individual’s deliberate dishonesty are that “the
individual made prompt, good-faith effort to correct the omission, concealment, or falsification
before being confronted with the facts” and “that the offense is so minor, or so much time has
passed, or the behavior is so infrequent, 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[.]” Adjudicative Guidelines, Guideline E, ¶ 17 (emphasis added).
In this case, the Individual has brought forward no evidence of any efforts on his part to correct
the omissions on either QNSP, despite his knowledge that the forms were inaccurate when he
submitted them. To the contrary, as noted above, he instead hoped that the omitted information
would not come to light. In addition, throughout the various stages of the security clearance
application process, the Individual has demonstrated his indifference to the applicable reporting
requirements. For example, several of the omissions were driven by the Individual’s own
determinations regarding the necessity of reporting certain information, regardless of the actual
requirements. As a result, I have little confidence at this time that such deliberate dishonesty
would not recur in the future. Finally, it is well-settled in previous cases of this office that
where there exist security concerns attributable to irresponsible behavior, such as falsifications of
security questionnaires or other forms of dishonesty, a subsequent pattern of responsible
behavior is of critical importance in mitigating those concerns. See, e.g., Personnel Security
Hearing, Case No. PSH-11-0017 (2012); Personnel Security Hearing, Case No. TSO-0568
(2008). In this case, as of the hearing, approximately nine months had elapsed since the
Individual submitted the October 2012 QNSP, his last known deliberate act of dishonesty, and
even less time since the DOE learned the full extent of his omissions.7 Consequently, not
enough time has passed for the Individual to establish a pattern of honest and responsible
behavior sufficient to mitigate the concerns raised by his recent dishonest conduct.
Accordingly, based on the foregoing, I find that the Individual has not mitigated the Criterion F
concerns raised by his deliberate omissions of required information on the June 2012 and
October 2012 QNSPs.
B. Criterion L – The Individual’s Pattern of Criminal Conduct and His Willingness to
Comply with Laws, Rules, and Regulations
As indicated above, the Criterion L concerns in this case stem from the Individual’s history of
criminal arrests and charges, as well as certain of his statements regarding his past criminal
behavior.
1. The Individual’s Mitigating Evidence
Other than the arrests that the Individual attributed to a neighbor who allegedly stole his social
security number, discussed above, the Individual generally did not dispute the evidence in the
record regarding his criminal history. Rather, he stated, “I got into a lot of trouble when I was
drinking, but I haven’t drank in 21 years. And as far as getting angry, my only problem when I
7 The OPM Report indicates that the background investigation was completed in December 2012. DOE Ex. 8.
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got angry was with my ex-wife, but she’s the one who provoked me all the time.” Tr. At 58.
The Individual added that, after his treatment for his past alcohol and substance abuse in 1992,
he became more religious and his “behavior has changed completely.” Tr. at 66.
With respect to his past domestic violence arrests, the Individual asserted that he “never
assaulted” his ex-wife, but rather acted in self-defense when she assaulted him. Tr. at 71. The
Individual disagreed that certain physical acts against his ex-wife, such as pulling her hair during
an argument, shoving her, or “holding her back,” constituted assault, because she had physically
assaulted him on previous occasions. See Tr. at 72-74. However, he acknowledged that there
were times where, although his ex-wife may have initiated a verbal confrontation, he was the
first to use physical force. Tr. at 72-73. For example, the Individual discussed a confrontation
that occurred after he became angry with his former spouse during an argument. He stated, “I
think she said, ‘you better shut up,’ or something like that, or ‘I’m going to stab you again.’ I got
angry because she said that I’m going to stab you, like if I was supposed to keep my mouth shut
just because she stabbed me the first time. It’s not going to happen. See, she wanted to be in . . .
charge of the house. She was too controlling. And now I know from the Bible it says I should –
the man should be the head of the house.” Tr. at 74. The argument culminated in the Individual
confronting his ex-wife and pulling her hair. Tr. at 73-74. When asked whether he believed he
would respond similarly if provoked in the future, the Individual replied, “under the same
circumstances . . . I think I would respond the same way.” Tr. at 75. The Individual stated that
he and his ex-wife no longer have any contact, and he does not know her whereabouts. Id.
Finally, he testified that there is currently no one in his life with whom he has a tense or hostile
relationship. Tr. at 76.
The Individual’s wife testified that there have been no incidents of domestic violence in their
nearly eight-year marriage. Tr. at 27, 34. She stated that, while they have had minor
disagreements over the years, she and the Individual have never had serious arguments. Tr. at
33. She added, “we really get along well.” Tr. at 34. The Individual’s wife further stated that
she has not known the Individual to have any serious arguments or altercations, verbal or
physical, with anyone. Id. She is aware of the incidents in the Individual’s past, but testified
that, in her experience, the Individual is “just a very peaceful person, really” and “ pretty calm.”
Tr. at 35.
2. Whether the Individual has Mitigated the Criterion L Concerns
Among the factors that may serve to mitigate security concerns raised by an individual’s past
criminal behavior are that the criminal conduct was not recent, is unlikely to recur, and there is
evidence of rehabilitation, which may include “remorse.” Adjudicative Guidelines, Guideline J, ¶
32. In this case, the Individual’s criminal conduct is not recent. Ten years have elapsed since
the Individual’s most recent criminal activity, a 2003 arrest for Aggravated Battery on a
Household Member following an altercation with his ex-wife. Since that time, there is no
evidence that the Individual has engaged in any other criminal activity. Moreover, the change in
the Individual’s lifestyle since his 1992 alcohol and substance abuse treatment and his
subsequent abstinence weighs in his favor. Under most circumstances, this would be ample
evidence of rehabilitation and unlikelihood of recurrence, which are identified in the
Adjudicative Guidelines as mitigating factors. However, the Individual’s own statements
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regarding his previous criminal conduct – specifically, his incidents of violence toward his ex-
wife – are troubling.
The Individual expressed no remorse for his past violent behavior toward his former spouse, but
rather continued to justify his conduct as a necessary and appropriate response under the
circumstances. The record is replete with the Individual’s statements in that regard, not only at
the hearing, but also during the PSI and OPM investigation. See, e.g., DOE Ex. 7 at 256-57, 264;
DOE Ex. 8 at 104, 114-15. Finally, the Individual was unable to give assurances that he would
not engage in similar conduct in the future should he be faced with similar circumstances. See
Tr. at 75; DOE Ex. 7 at 253. Given that the Individual has consistently attributed his past acts of
violence solely to the instigation of his ex-wife, from whom he been divorced for over a decade
and with whom he has no contact, his doubts regarding how he might respond in future situations
if provoked create some doubts regarding whether the Individual’s past conduct was tied to one
specific person as he alleges. There is simply insufficient reliable evidence in the record to
resolve those doubts in favor of the Individual. Consequently, the Individual’s own statements
leave me unable to conclude that his past criminal behavior – specifically, violence when
provoked to anger – is unlikely to recur in the future, despite the length of time since the
previous incident. See 10 C.F.R. § 710.7(a) (“Any doubt as to an individual's access
authorization eligibility shall be resolved in favor of the national security.”). Accordingly, I find
that the Criterion L concerns remain unresolved.
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criteria F and L of the
Part 710 regulations. I further find that there is insufficient information in the record to mitigate
those concerns. Therefore, I am unable to conclude that granting the Individual 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). Accordingly, I find that the DOE should not grant
the Individual access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: August 16, 2013