PSH-13-0125

*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: November 29, 2013 ) Case No.: PSH-13-0125
)
____________________________________)
Issued: March 5, 2014
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Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an 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 Department of
Energy (DOE) should not restore the Individual’s access authorization.
I. BACKGROUND
The Individual is an employee at a DOE facility and possessed a security clearance. Exhibit (Ex.)
3 at 1. Pursuant to an inquiry regarding the Individual’s government-issued credit card (GCC),
DOE management officials discovered that the Individual, on several occasions, had used his
GCC for non-business purposes. Ex. 3 at 1-2. The Local Security Office (LSO) subsequently
conducted a personnel security interview (PSI) with the Individual in September 2013
(September 2013 PSI). Ex. 8. Because the September 2013 PSI failed to resolve the security
concerns raised by the Individual’s inappropriate use of his GCC and a misleading written
statement made to his supervisors regarding his misuse, the LSO suspended the Individual’s
security clearance in September 2013. Ex. 2. In October 2013, the Individual received a detailed
notification letter (Notification Letter) from the LSO outlining the specific derogatory
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 an
access authorization or a security clearance.
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information, described under 10 C.F.R. § 710.8 (l), upon which it relied upon in making the
decision to suspend the Individual’s security clearance.2 Ex. 1.
The Notification Letter also informed the Individual that he was entitled to a hearing before an
Administrative Judge3 to present evidence to resolve these doubts. The Individual requested a
hearing in this matter. The LSO forwarded this request to OHA and the OHA Director assigned
me as the Administrative Judge in this matter. The DOE introduced nine exhibits (Exs. 1-9) into
the record of this proceeding. The Individual introduced two exhibits (Exs. A-B) and presented
the testimony of his first-, second-, and third-line supervisors, his team leader, as well as his own
testimony, during the hearing.
II. FACTUAL FINDINGS AND THE
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 cites Criterion L of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8. Ex. 1. The Individual does not dispute the
factual accuracy of the Criterion L derogatory information described in the Notification Letter. I
set forth my factual findings below.
The Individual’s first-line supervisor received an inquiry from a DOE finance office asking if
several employees, including the Individual, had been on official travel on certain dates money
had been withdrawn from their GCCs.4 Transcript of Hearing (Tr.) at 59-60. The first-line
supervisor discovered that the Individual had not been on official travel on the dates in February
and March 2013, that the DOE finance office had asked about. Tr. at 50. Afterwards, the first-
line supervisor asked the Individual about the charges and the Individual informed him that he
had accidentally used his GCC for withdrawals because it was similar in appearance to his
personal credit card. Tr. at 60. In April 2013, the Individual submitted a written statement (April
2013 Statement) reiterating this account of his misuse of his GCC.5 Ex. 7. By July 2013, the
Individual’s third-line supervisor, after asking for additional account information, discovered that
the Individual had made additional GCC withdrawals not previously identified in the
Individual’s April 2013 Statement. Ex. 6 at 2; Tr. at 19. In separate meetings, the Individual
2 Criterion L refers to 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. § 710.8(l).
3 Effective October 1, 2013, the titles of attorneys in the Office of Hearings and Appeals (OHA) changed from
Hearing Officer to Administrative Judge. See 78 Fed. Reg. 52389 (August 23, 2013). The title change was
undertaken to bring OHA Hearing Officers in line with the title used at other federal agencies for officials
performing identical or similar adjudicatory work. See Personnel Security Hearing, Case No. PSH-13-0114 at 1 n.1
(2014).
4 A GCC is issued to employees to be used only when on official travel. Ex. 8 at 13-14. The inquiry into the
Individual’s GCC account was triggered by a computer gaming service purchase that appeared on the account. Tr. at
24-25; Tr. at 60. The Individual’s son had made the gaming service purchases without the Individual’s prior
knowledge.
5 In the April 2013 Statement, the Individual specifically identified a computer gaming service purchase and six
other withdrawals of funds from his GCC. Ex. 7.
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informed his first-line supervisor and his third-line supervisor that he had not been truthful in his
earlier discussions and his April 2013 Statement regarding his GCC use. Tr. at 20-21, 23-24, 62-
63. The Individual then disclosed that he had been living beyond his means and that he was
having financial problems but that he was in the process of resolving those problems.6 Tr. at 23-
24, 62-63; Ex. 6 at 3.
During the September 2013 PSI, the Individual admitted that he knew that his GCC was to be
used only for official government travel. Ex. 8 at 11-13. He also admitted that he had
purposefully used his GCC on various occasions from February 28, 2013, through March 11,
2013, for personal use and then paid off the charges on the GCC to avoid detection. Ex. 8 at 12,
18-20, 64-65. During one week of that period, the Individual admitted to having obtained cash
advances of approximately $1,000. Ex. 8 at 65-66; see also Ex. 3; Ex. 4; Ex. 6 at 4. The
Individual admitted that his improper use of his GCC was prompted by his financial difficulties
caused by his inability to receive overtime pay due to an injury. Ex. 8 at 20. In his subsequent
request for a hearing, the Individual admitted that he had not been initially truthful with his
employer because he was ashamed of what he had done. Ex. 2.
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. 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), Guideline E. Further, failure or inability to live within one's means,
satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or
unwillingness to abide by rules and regulations, all of which can raise questions about an
individual's reliability, trustworthiness and ability to protect classified information. Adjudicative
Guidelines, Guideline I. Given the Individual’s admissions that he deliberately used his GCC to
provide cash for his own private use and that his misuse was motivated by his financial
difficulties, I find that the LSO had sufficient grounds to invoke Criterion L.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that, in these proceedings, an Administrative Judge 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 granting
the Individual a 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.
§ 710.7(c). In considering these factors, the Administrative Judge 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.”
6 The Individual ultimately received a five-day disciplinary suspension for his misuse of his GCC.
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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
As noted above, the Individual does not challenge the underlying facts of this case. However, the
Individual presented testimony to try to demonstrate his true remorse for having not been initially
truthful with his supervisors. Further, the Individual asserts that he has taken steps to resolve the
underlying financial difficulties that led to his misuse of the GCC. Lastly, the Individual asserts that
his past workplace and personal record indicate that this incident was an isolated case of bad
judgment and that he can now be relied upon to hold a security clearance.
The Individual presented testimony from his first, second, and third-line supervisors as well as his
team leader. The supervisors testified as to the events that led to the inquiry regarding the
Individual’s use of his GCC. All of the supervisors testified as to the Individual’s excellent work
record and their opinion that the Individual usually exercises good judgment and reliability. In their
testimony, all expressed surprise that the Individual exhibited poor judgment with regard to the use
of his GCC and noted that the Individual had expressed deep contrition regarding making a bad
choice.
All of the supervisors and the team leader testified as to the Individual’s attempts to resolve his
financial problems after his GCC misuse was discovered. Specifically, they testified to the
Individual’s selling of his relatively expensive pick-up truck and his now use of a modest pick-up
truck. Tr. at 24, 49, 79, 82. The team leader has visited the Individual’s house and has not observed
any evidence that the Individual is leading an extravagant life-style. Tr. at 75, 87. Each of the
supervisors and the team leader believe that the Individual made an aberrant poor judgment but that
the Individual, based upon their interactions with him, has learned a valuable lesson and is now
worthy to hold a security clearance. Tr. at 27-30, 42-44, 68-70, 80-82
The Individual testified that his misuse of his GCC arose when he could no longer receive overtime
pay because of an injury that restricted his ability to work overtime assignments. Tr. at 92. The
Individual created financial obligations based upon the higher income he would receive with his
overtime pay. With his income now reduced, he began to experience financial difficulty. Tr. at 92.
The Individual asserted in his testimony that he always paid his monthly GCC balance and thus he
never “stole” from the government. Tr. at 93. The Individual believes that his five-day suspension
and the ordeal of going through the administrative review process has been a deserved punishment –
a punishment he never wants to go through again. Tr. at 94-95. The Individual further testified that
he would never put himself in a position where his judgment could be questioned again. Tr. at 95.
To resolve the financial situation which led to his GCC misuse, the Individual testified that he began
by selling a number of high cost items that were a financial strain, such as his $40,000 truck, a
$20,000 motorcycle and two all terrain vehicles. Tr. at 96-97. The Individual has also consulted with
the DOE facility’s Employee Assistance Program and employed a financial advisor to assist him with
his finances. Tr. at 97. As of the date of the hearing, the Individual is now able to live off his basic
salary without overtime. Tr. at 98. The Individual also intends to continue to work to reduce his
remaining financial liabilities and now has a spreadsheet budget plan that he developed with his
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financial counselor. Tr. at 98, 128-29; Ex. A. The Individual has been using this plan for the six
months prior to the hearing. Tr. at 129.
At the hearing, the Individual testified that he took full responsibility for his actions and recognizes
that his actions have jeopardized his reputation and credibility. Tr. at 133. The Individual asserts that
his past-unblemished military and federal service of 19 years is evidence of his good character. The
Individual apologized for his actions that led to the present hearing and requests that he be given a
second chance to hold a security clearance. Tr. at 137-39.
The Criterion L concerns in this case center on the Individual’s deliberate misuse of his GCC, his
initial false statements regarding his misuse, and the Individual’s financial instability that led to his
misuse of the GCC. As for his misuse of his GCC, the Individual knew that his use to obtain money
for non-travel purposes was wrong but yet elected to do so. This represents a significant example of
bad judgment. In mitigation, the Individual has presented evidence regarding his efforts, including
financial counseling, to resolve the financial situation that led to his misuse of the GCC. See Ex. A;
Ex. B; see Adjudicative Guidelines, Guideline E, ¶ 17 (listing as a mitigating factor: 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); Guideline F
(Financial Considerations), ¶ 20 (the person has received or is receiving counseling for the
problem and/or there are clear indications that the problem is being resolved or is under control.)
Documentary evidence provided by the Individual confirms that he has sold a number of vehicles to
reduce his debt burden. Ex. A; Ex. B. The Individual also presented evidence concerning his
household budget that he asserts will enable him to live within his means. Ex. A; Ex. B. Nonetheless,
the Individual reformed financial habits are of relatively limited duration. In prior cases involving
financial irresponsibility, Hearing Officers have held that “[o]nce an individual has demonstrated a
pattern of financial irresponsibility, he or she must demonstrate a new, sustained pattern of financial
responsibility for a period of time that is sufficient to demonstrate that a recurrence of the past pattern
is unlikely.” See Personnel Security Hearing, Case No. TSO-01078 (2011); Personnel Security
Hearing, Case No. PSH-11-0033 (2011). Although the Individual does not appear to have a lengthy
pattern of financial irresponsibility, I cannot find that the Individual’s relatively recent efforts
regarding reforming his finances totally resolve the concerns raised by the Criterion L derogatory
information.
Most concerning to me is the Individual’s recent falsification in submitting the April 2013 Statement
and the accuracy of his testimony during the hearing. In his testimony, the Individual stated that
immediately after submitting the April 2013 Statement, he informed his first-line supervisor that the
April 2013 Statement was not correct. Tr. at 126. However, a report authored by the first-line
supervisor indicates that the first-line supervisor did not discover that the April 2013 Statement was
false until sometime in July 2013.7 Ex. 6 at 3 (third-line supervisor’s account of a late July 2013
meeting with first-line supervisor stating “prior to [the first-line supervisor] coming in to talk to . . .
me [he informed me] that he had spoken to [the Individual]. [The first-line supervisor stated] that [the
Individual] had admitted living beyond his means and that he had sold off some of his possessions to
ease his self-inflicted financial burdens”); see Tr. at 19-22 (third-line supervisor testimony that, in
July 2013, he initially believed the extent of the Individual’s GCC misuse was limited to the
7 The first-line supervisor testified that he did not discover that the Individual had misled him as to the extent of the
Individual’s misuse of the GCC until the September 2013 PSI. Tr. at 62. However, I find the third-line supervisor’s
contemporaneous report to be more persuasive. My finding is confirmed by the first-line supervisor’s additional
testimony that he did not realize that the Individual had been untruthful with him until the third-line supervisor
informed him as to the other previously unreported misuses of the Individual’s GCC. Tr. at 62.
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occasions documented in the Individual’s April 2013 Statement but later discovered improper
withdrawals of approximately $6,000 over a year-and-a-half time frame); Ex. 6. Additionally, when
asked at the hearing about the first time he made inappropriate GCC cash withdrawals, the Individual
responded that his misuse of his GCC began in February 2013. Tr. at 119. Nonetheless, later in the
hearing, when shown GCC withdrawal records, the Individual admitted he had made three
inappropriate GCC withdrawals in January 2013. Tr. at 120-21; see also, Tr. at 25-26 (third-line
supervisor’s testimony that his audit of Individual’s GCC misuse indicated improper withdrawals of
approximately $6,000 over a year-and-a-half time frame); Tr. at 47 (second-line supervisor’s
testimony that the Individual’s GCC misuse lasted seven months); Ex. 6. Given the Individual’s
initial deliberate deception as to the extent of his GCC misuse as demonstrated in the April 2013
Statement, the Individual’s unreliable testimony at the hearing, and the relatively recent nature of his
reformed financial situation, I cannot find that the Criterion L concerns raised by the Notification
Letter have been resolved.
V. CONCLUSION
For the reasons set forth above, I conclude that the Individual has not resolved the DOE’s
security concerns under Criterion L. Therefore, the Individual has not demonstrated that
restoring his access authorization would not endanger the common defense and would be clearly
consistent with the national interest. Accordingly, I find that the DOE should not restore the
Individual’s access authorization. Review of this decision by an Appeal Panel is available under
the procedures set forth at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals
Date: March 5, 2014