PSH-13-0065

*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 22, 2013 ) Case No. PSH-13-0065
)
_________________________________________ )
Issued: September 18, 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 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 detailed below, I find that the DOE should
not restore the Individual’s access authorization at this time.
I. BACKGROUND
The Individual is a DOE employee who participated in the DOE’s Human Reliability Program
(HRP), 2 and currently holds a suspended DOE access authorization. DOE Exhibit ("Ex.") 3. In
December 2012, the Local Security Office (LSO) learned that the Individual was temporarily
removed from the HRP.3 DOE Ex. 3. This information prompted the LSO to conduct a February
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.
2 The Human Reliability Program is a security and safety reliability program designed to ensure that individuals who
occupy positions affording access to certain materials, nuclear explosive devices, facilities, and programs, meet the
highest standards of reliability and physical and mental suitability. See 10 C.F.R. § 712.1.
3 A December 2012 Incident Report indicates that the Individual’s removal from the HRP was “based on concerns
as reflected in 10 C.F.R. 712.13(c): (3) indications of deceitful or delinquent behavior; (9) irresponsibility in
performing assigned duties; (11) failure to comply with work directives . . . and violation of safety or security
procedures.” DOE Ex. 9. However, a subsequent Incident Report issued in January 2013 states, “CORRECTION:
Please note that [the Individual’s] temporary removal from HRP duties . . . was due to 10 C.F.R. 712.14 – Medical
Assessment[,] not 10 C.F.R. 712.12(c) [sic] as noted below.” DOE Ex. 8.
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2013 Personnel Security Interview (PSI) with the Individual, the purpose of which was to
discuss, inter alia, the circumstances resulting in his removal from the HRP. DOE Ex. 11. After
the PSI, the LSO referred the Individual to a DOE consultant-psychologist ("the DOE
psychologist") for an evaluation. The DOE psychologist evaluated the Individual in March 2013
and issued a report. DOE Ex. 6. In April 2013, the LSO informed the Individual that there
existed derogatory information that raised security concerns under 10 C.F.R. §§ 710.8 (h), (j) and
(1) (Criteria H, J and L, respectively).4 See DOE Ex. 1 (Notification Letter, April 22, 2013). The
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 the Hearing Officer. At the hearing, the
DOE counsel introduced twelve exhibits into the record (DOE Exs. 1-12) and presented the
testimony of one witness, the DOE psychologist. The Individual, represented by counsel,
submitted seven exhibits and presented his own testimony, as well as the testimony of the
following nine witnesses: his wife; his father-in-law; his Alcoholics Anonymous (AA) sponsor; a
long-time AA member, who has become a mentor to the Individual in the AA program; the
Individual’s treating counselor; and four work witnesses, including a current senior manager, a
former supervisor, and two coworkers. See Indiv. Exs. A-G; Transcript of Hearing, Case No.
PSH-13-0065 (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 the DOE has made a showing of derogatory information raising a
security concern, the individual has the burden of bringing forward sufficient evidence to fully
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
4 Criterion H concerns information that a person has "an illness or mental condition of a nature which, in the opinion
of a board-certified psychiatrist, other licensed physician or a licensed clinical psychologist causes, or may cause, a
significant defect in judgment or reliability." 10 C.F.R. §710.8(h). Criterion J relates to conduct indicating that the
Individual has “been, or is, a user of alcohol habitually to excess, or has been diagnosed by a psychiatrist or a
licensed clinical psychologist as alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(j).
Criterion L pertains to circumstances tending 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." l0 C.F.R. § 710.8(1).
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material factors," and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). When weighing 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 reach a decision favorable to the Individual, 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). The regulations require that "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").
III. FINDINGS OF FACT
A. The Individual’s Alcohol Use
The Individual began consuming alcohol at age sixteen. DOE Ex. 7 at 10. During his teenage
years, the Individual drank several times a year, and estimates that he drank to intoxication on
those occasions. Id.; DOE Ex. 11 at 36. As an adult, with the exception of a two-year overseas
military deployment to a country where alcohol was unavailable and an eighteen-month period
of overseas employment with a civilian contractor, the Individual consumed alcohol on a
relatively consistent basis, drinking several times per year from 1995 or 1996 until 2012. DOE
Exs. 6, 7, 11. While there is some dispute in the record regarding the amount of alcohol that the
Individual consumed throughout the years, it is well-established that he often drank to
intoxication. However, during the PSI, he denied ever “blacking out” due to excessive alcohol
consumption.5 DOE Ex. 11 at 62. From 2012 until January 2013, the Individual consumed
alcohol to intoxication approximately two weekends per month. DOE Ex. 6 at 9; DOE Ex. 7 at
16.
In March 2013, the DOE psychologist diagnosed the Individual with Alcohol-Related Disorder
Not Otherwise Specified (NOS), and determined that he used alcohol habitually to excess. DOE
Ex. 6 at 9. She noted that his decision to abstain from alcohol in January 2013 was “a good start
to demonstrating control over his alcohol consumption, but too recent to determine if it will be
lasting.” Id. In that regard, the DOE psychologist recommended that, in order to demonstrate
evidence of rehabilitation or reformation from his alcohol-related condition, the Individual
should maintain abstinence from alcohol for a minimum of one year. Id. at 11. She further
5 During a September 2012 Special Psychological Evaluation conducted in connection with the Individual’s
participation in the HRP, the Individual allegedly admitted that he had blacked out on one occasion – the night
before an overseas military deployment in 1995 after consuming “an unknown amount of hard liquor.” DOE Ex. 7
at 11.
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recommended that the Individual’s abstinence be confirmed by random alcohol screenings, and
be supported by either individual counseling sessions with a therapist specializing in substance
abuse disorders or documented participation in the AA program with the support of a sponsor.
Id.
B. The Individual’s Workplace Incidents
The Individual has been a DOE employee since 2003. DOE Ex. 6 at 1. During his ten-year
career with the DOE, he has had several incidents involving a violation of a workplace rule,
regulation or procedure. In 2007, the Individual did not report certain medical information to his
site’s health unit, as required by regulation. DOE Ex. 11 at 14. In 2009, the Individual received
a Letter of Reprimand after he purportedly misplaced classified information on the seat of a van.
DOE Ex. 10. In 2010, the Individual failed to ensure that he had a required standard operating
procedure (SOP) book in his possession when leading a team that was moving a piece of
equipment from one location to another, in violation of workplace procedures. This incident also
resulted in a Letter of Reprimand. In 2011, the Individual received a Letter of Reprimand for
failing to notify a supervisor that he had not completed a required physical qualification exercise
prior to accepting an assignment. DOE Ex. 11 at 26-28. More recently, during a June 2012
work-related trip, the Individual failed to appear for a required breakfast meeting at the
appointed time, and then allegedly lied to his supervisor when asked to explain his behavior.
DOE Ex. 1 at 2.
C. The Individual’s Discrepant, Misleading, or Untrue Statements
During the June 2012 incident in which the Individual did not report for a mandatory breakfast
meeting during a work trip, the Individual was not forthcoming with his supervisor when
questioned regarding the circumstances that led to his absence. DOE Ex. 1 at 2. Specifically,
when initially questioned by his supervisor, the Individual stated that, after their group arrived at
their hotel the previous day, he and a colleague went to dinner and a movie, after which he
returned to his room and stayed up late reading a book. DOE Ex. 7. at 28. The Individual stated
that he had returned to his room at approximately midnight, and initially attributed his absence
from the breakfast to oversleeping. Id. In fact, after the Individual and his colleague returned to
the hotel, the Individual stayed out gambling for the evening and did not return to his room until
approximately 4:45 a.m. Id.; DOE Ex. 1 at 2.
In addition to his untrue statement to his supervisor in June 2012, the Individual has since
provided discrepant information during psychological evaluations. In September 2012, the
Individual participated in a Special Psychological Evaluation (SPE) in connection with his
participation in the HRP. During the SPE, his reports regarding the amounts and frequency of
his past alcohol consumption were often inconsistent. See, e.g., DOE Ex. 7 at 12-13, 15. The
Individual also provided discrepant information concerning the frequency with which he took
certain medications. Id. at 5. During his March 2013 evaluation with the DOE psychologist, the
Individual also gave discrepant information regarding his history of alcohol use, with respect to
the frequency and quantity of his past consumption. DOE Ex. 6 at 2, 12-14. In addition, he
made a misleading statement regarding how many AA meetings he had attended to date. Id. at 6.
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In her March 2013 evaluation report, the DOE psychologist opined that the Individual’s “need to
maintain an inflated self-image and [his] willingness to protect himself through dishonesty” was
a condition which causes, or may cause, a defect in his judgment or reliability. DOE Ex. 1 at 1.
Relying heavily on the SPE report, as well as her own observations, the DOE psychologist based
her diagnosis of a mental condition on her opinion that the Individual “repeatedly did not admit
to something until caught and confronted,” “lied by omission and commission,” was “untruthful
in efforts to keep himself out of trouble, explain and rationalize his behavior, or otherwise evade
negative consequences,” and, generally, “demonstrated a . . . pattern to misrepresent the truth . . .
a number of times, in various circumstances, over the last several years.” DOE Ex. 6 at 9.
According to the DOE psychologist, these tendencies are “an amalgam which has resulted in
serious errors in judgment and failure to perform reliably.” Id. at 10.
IV. THE NOTIFICATION LETTER AND ASSOCIATED SECURITY CONCERNS
As stated above, the LSO cited security concerns under Criteria H, J and L of the Part 710
regulations. See DOE Ex 1.
In support of its Criteria H and J concerns, the LSO cited the DOE psychologist’s opinion that
the Individual met the diagnostic criteria set for Alcohol-Related Disorder Not Otherwise
Specified (NOS) and was a user of alcohol habitually to excess, as well as the Individual’s
reports regarding the frequency of the occasions on which he drank to intoxication. Id. at 1-2. It
is well-settled that excessive use of alcohol raises security concerns because “excessive alcohol
consumption often leads to the exercise of questionable judgment or the failure to control
impulses, and can raise questions about an individual’s reliability and trustworthiness.”
Adjudicative Guidelines, Guideline G, ¶ 21. In this case, given the DOE psychologist’s
diagnosis, together with the Individual’s own statements regarding the frequency and amounts of
his alcohol consumption, LSO had ample grounds for invoking Criteria H and J.
The LSO also cited as the basis for security concerns under Criterion H the DOE psychologist’s
opinion that the Individual’s “need to maintain an inflated self-image and [his] willingness to
protect himself through dishonesty is a mental condition which has caused, or may continue to
cause significant defects in his judgment and reliability.” DOE Ex. 1 at 1. It is well-established
that certain psychological conditions may raise security concerns. The Part 710 regulations
identify as potentially disqualifying information establishing that an individual has “an illness or
mental condition of a nature which, in the opinion of a board-certified psychiatrist, other licensed
physician or a licensed clinical psychologist causes, or may cause, a significant defect in
judgment or reliability.” See 10 C.F.R. § 710.8(h). The Adjudicative Guidelines specify that
certain psychological conditions may raise concerns even in the absence of a formal diagnosis.
See Adjudicative Guidelines, Guideline I, ¶ 27. Given the DOE psychologist’s diagnosis, the
LSO properly invoked Criterion H.
Finally, as the basis for invoking Criterion L, the LSO cited: (1) the Individual’s 2007, 2009,
2010, and 2011 incidents of involving violations of workplace rules or regulations; (2) the
Individual’s June 2012 failure to report to the work-related breakfast meeting, and his subsequent
alleged lie to his supervisor; and (3) the Individual’s purportedly discrepant statements regarding
whether he had ever “blacked out” after consuming alcohol to excess. DOE Ex. 2-3. According
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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 ability to protect classified information.” Id., Guideline E, ¶ 15. Among the
conditions regarding an individual’s conduct that may raise security concerns is the existence of
“credible adverse information that is not explicitly covered under any other guideline and may
not be sufficient by itself for an adverse determination, but which, when combined with all
available information supports a whole-person assessment of questionable judgment,
untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and
regulations, or other characteristics indicating that the person may not properly safeguard
protected information[,]” including evidence of “a pattern of dishonesty or rule violations.” Id.,
Guideline E, ¶ 16(d). In this case, I find that the information listed in the Notification Letter
under Criterion L has raised valid security concerns regarding his honesty, trustworthiness, and
reliability. Therefore, the LSO properly invoked 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 restoring the
Individual's suspended 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. The Individual’s Excessive Consumption of Alcohol
The Individual did not dispute the facts regarding his alcohol use or the related security concerns.
He acknowledged that he is “an alcoholic” and cannot drink alcohol in the future, even in
moderation. Tr. at 214. He intends to abstain permanently from alcohol, and has made several
lifestyle changes to help him attain that goal. Tr. at 214-15. According to the Individual, his
involvement in the AA program, and his relationships with his AA sponsor and his mentor, have
been extremely beneficial to him. Tr. at 215. He attends several AA meetings weekly, and has a
regular meeting with which he is involved that he finds very valuable due to its structure. He
explained, “in this group, they are really involved with getting into the problems, finding
solutions, which I really, really wanted to do.” Tr. at 218. The Individual is actively working
the AA program’s twelve steps with his sponsor. Tr. at 219, 283-84 . He has also developed
relationships with other members of the program and they have become part of his support
system. Tr. at 222. In addition to his involvement in AA, the Individual continues to attend
therapy sessions with the treating counselor, and finds those sessions useful to reinforce his work
in AA. Tr. at 280. Finally, the Individual stated that his wife is supportive of his abstinence and
has agreed to attend a number of AA meetings with him. Tr. at 223. She also reinforces the
positive changes he has made by praising his efforts and encouraging him. Tr. at 223-34.
The Individual’s wife, father-in-law, and AA witnesses corroborated the Individual’s testimony
regarding his abstinence from alcohol, his participation in AA, and his intention to remain
abstinent from alcohol in the future. Tr. at 14, 30, 36
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The Individual’s wife testified that the Individual’s attitude toward his abstinence and the AA
program has been “very, very positive . . . he knows and feels that he needs it, and . . . he looks
forward to going to meetings and being able to talk.” Tr. at 23-24. She has noticed positive
changes in the Individual since he stopped consuming alcohol. She testified that, although their
relationship has always been good, he has become more “present” and involved as a husband and
father since he stopped drinking. Tr. at 16, 22. The Individual’s sponsor testified that the
Individual has “done all the work,” and is actively working the program’s twelve steps. Tr. at
56-57. The AA sponsor believes that the Individual “has grasped the seriousness” of his problem
and has “embraced the program thoroughly.” Tr. at 58.
After listening to the testimony of the other witnesses at the hearing, the DOE psychologist
opined that the Individual’s participation in AA “has helped him enormously” but she did not
change the conclusions or recommendations that she made in her March 2013 evaluation report.
Tr. at 310. She noted as a positive factor the Individual’s acceptance of his alcohol problem and
his recognition that he cannot drink safely in moderation. Id. However, the DOE psychologist
noted that it was too early in the Individual’s recovery process to conclude that he was
rehabilitated from the diagnosis of Alcohol-Related Disorder NOS. Tr. at 361. In that respect,
she concluded that, at the time of the hearing, the Individual continued to demonstrate a
“moderate” risk of relapse.
Among the factors that may serve to mitigate security concerns raised by an individual’s alcohol
use are that “so much time has passed, or the behavior was so infrequent, or it happened under
such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment,” that “the individual acknowledges his or
her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this
problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if
an alcohol abuser),” and that “the individual has successfully completed inpatient or outpatient
counseling or rehabilitation along with any required aftercare, has demonstrated a clear and
established pattern of modified consumption or abstinence in accordance with treatment
recommendations such as participation in meetings of [AA] or a similar organization and has
received a favorable prognosis by a duly qualified medical professional or a licensed clinical
social worker who is a staff member of a recognized alcohol treatment program.” Adjudicative
Guidelines, Guideline G, ¶ 23.
The Individual presented some mitigating evidence which demonstrates the steps he has taken to
address his alcohol problem. He has acknowledged his condition, regularly attends and actively
participates in AA meetings, and has developed close relationships with his AA sponsor, mentor,
and other AA members. However, while the Individual has remained abstinent for
approximately six months as of the hearing and has expressed his intention to maintain his
abstinence in the future, he remains in the early stages of his recovery. In this regard, I am
persuaded by the testimony of the DOE psychologist that the Individual’s period of abstinence is
not yet sufficient to establish adequate evidence of rehabilitation and reformation. Given these
facts, I cannot conclude at this time that the Individual has adequately mitigated the Criteria H
and J concerns raised by his past alcohol use.
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B. The Individual’s Pattern of Dishonesty
At the hearing, the Individual acknowledged that he has made questionable choices, but did not
believe that he has a propensity to lie to protect himself or to avoid negative consequences. Tr.
at 229. Rather, he testified that he believed that it was necessary to exude an exaggerated sense
of confidence at work in order to lead the team assigned to him. Tr. at 230. The Individual also
testified that he did not intend to be “deceitful” and was “not trying to lie, trying to get out of
trouble.” He stated that, partly through therapy and his involvement in the AA program, he has
since learned that he “acted out of arrogance, doing what [he] thought was best, without
notifying supervisors or getting some other review . . . looking back at my character defects and
honestly talking to myself, that’s exactly what it was . . . .” Tr. at 262. However, his
participation in counseling and his daily contact with his AA sponsor, mentor, and others in the
program, have shown him where he needs “improvements” and taught him the skills necessary to
make those improvements. Id.
The Individual’s counselor testified that the Individual voluntarily sought out treatment, at
significant personal expense, and appears to be very sincere in working on “self-improvement.”
Tr. at 77-78, 93, 101. The Individual’s wife testified that she and the Individual have a stable
relationship, and the Individual has always been honest with her. Tr. at 15-16, 20. The
Individual’s father-in-law added that the Individual was somewhat arrogant in the past,
particularly before attending AA and counseling, but has always been very careful not to disclose
any prohibited information regard his work, and has not tried to avoid responsibility for his
behavior. Tr. at 37-38, 41-42. Finally, during their testimony, the Individual’s work witnesses
testified that the Individual generally was honest, reliable and trustworthy, exercised good
judgment, and followed rules and regulations, notwithstanding the disciplinary incidents cited in
this case. See, e.g., Tr. at 119, 156-57, 159-60, 165, 168, 173, 180, 183, 198, 212.
After listening to the testimony of the other witnesses at the hearing, the DOE psychologist
opined that the Individual had made “significant” progress with respect to this condition, noting
that there was “still room for some improvement.” Tr. at 312, 358. However, she stated that the
condition was “very attenuated,” and she opined that “the risk for significant defects” in the
Individual’s judgment and reliability as a result of this condition “is low.” Tr. at 358. Given the
foregoing, I find that the Criterion H concerns regarding the Individual’s pattern of dishonesty as
“a mental condition which causes, or may cause, a significant defect in judgment or reliability”
have been sufficiently mitigated. See Adjudicative Guidelines, Guideline I, ¶ 29 (identifying as
possible mitigating factors for security concerns raised by psychological conditions a “recent
opinion by a duly qualified mental health professional employed by . . . the U.S. Government
that an individual’s previous condition is under control or in remission, and has a low probability
of recurrence or exacerbation” and that “there is no indication of a current problem”).
C. The Individual’s Workplace Incidents
As an initial matter, regarding his purportedly discrepant statements about whether he had
“blacked out” after consuming alcohol, the Individual was adamant that he did not tell the site
psychologist during the SPE that he had blacked out. He explained that he could not have made
the statement because he did not understand at the time that the term applied to the incident that
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he described and, he only learned that he had, in fact, experienced a “black out,” after became
active in AA and began discussions with his sponsor. Tr. at 238-239. Both the Individual’s AA
sponsor and his AA mentor testified regarding the time they have spent working with the
Individual. Tr. at 58, 146. A review of the SPE report shows that the site psychologist
repeatedly used quotations marks when attributing a statement directly to the Individual. DOE
Ex. 7. However, he did not use quotation marks in the paragraph in which he discussed the
incident where the Individual blacked out. Id. at 11. Given the abundance of quotes in the
remainder of the report, I have no reason to doubt that if the Individual had used that phrase, the
site psychologist would have quoted it in the report. While the site psychologist did not testify at
the hearing, and therefore could not be questioned regarding his recollection of the Individual’s
statements during the SPE, based on the record before me, I find the Individual’s testimony on
this issue to be credible. However, the other incidents cited under Criterion L remain
unresolved.
With respect to the June 2012 incident, the Individual readily acknowledged that he initially lied
to his supervisor regarding the circumstances that led to his failure to appear at the appointed
time. Tr. at 234. The Individual explained the incident at the hearing. According to the
Individual, the day before the June 2012 incident, after their arrival at their hotel, he and a
colleague went to dinner and a movie. After they returned to the hotel, the Individual and the
colleague parted ways, and the Individual stayed out until the early morning hours. At the time,
the Individual did not know when he returned to the hotel, but he knew that it was very late, well
past midnight. He overslept and missed the mandatory breakfast. Later that morning, the
Individual’s supervisor asked him what time he returned to the hotel and the Individual realized,
“I didn’t have an answer for him. I didn’t know what time I had gotten in.” Tr. at 232-34. The
Individual told his supervisor he did not know. The supervisor repeated the question, and the
Individual again responded that he did not know. When pressed a third time for an answer, the
Individual replied, “I don’t know. About midnight.” Tr. at 234. At the hearing, the Individual
stated, “that was a fabrication on my part . . . did I know it was 4:00 or after 4:00 in the morning?
I did not. However, that does not take away from the fact that I knew it was later than
midnight.” Id. Then when confronted with the correct time by his supervisor, who had already
confirmed it with the hotel, the Individual admitted that his response was untrue, although he had
not realized that he had been out that late.6 Tr. at 235. The Individual acknowledged that his
conduct was “definitely poor judgment,” and he expressed remorse for his conduct. Id. at 234.
The Individual also testified in detail regarding the other incidents cited under Criterion L. Tr. at
240-48. For each incident, he provided additional information regarding the circumstances
which ultimately led to each rule violation. Nonetheless, he did not deny that each incident was,
in fact, a violation of a rule or regulation for which he was responsible. 241, 243, 248, 274-75.
Among the factors which may serve to mitigate concerns raised by an individual’s pattern of
dishonesty or rule violations are that “the offense is so minor, or so much time has passed, or the
behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to
6 While the Individual testified in detail regarding the sequence of events that resulted in his absence from the
mandatory breakfast meeting, his testimony did not address the issue of the initial discrepancy in his statement to his
supervisor that he had simply overslept due to staying up late reading in bed when he, in fact, had been out gambling
until the early morning hours.
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recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment,”
and “the individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that
caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely
to recur.” Adjudicative Guidelines, Guideline E, ¶ 17.
In this case, the Individual has fully accepted responsibility for his past conduct. However, his
pattern of unreliable or untrustworthy conduct is relatively recent, with a serious incident
occurring slightly one year prior to the hearing. It is well-established in previous decisions of
this office that where there exist security concerns attributable to a pattern of irresponsible
behavior, such as forms of dishonesty or other untrustworthy or unreliable conduct, 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, insufficient time has passed to allow me to conclude that
future incidents of irresponsible conduct are unlikely to recur. Accordingly, I must conclude that
the Individual has not adequately mitigated the security concerns set forth in the Notification
Letter under Criterion L.
VI. 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 H, J and L of
the Part 710 regulations. I also find that the Individual has not presented sufficient information
to fully resolve those concerns. Therefore, I cannot conclude that restoring the Individual's
suspended 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). Accordingly, I find that the
DOE should not restore the Individual's access authorization at this time.
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: September 18, 2013