PSH-14-0072

*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: July 24, 2014 ) Case No.: PSH-14-0072
)
____________________________________)
Issued: December 19, 2014
______________
Decision and Order
_______________
Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (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 individual should not be granted
access authorization at this time. 2
I. BACKGROUND
The following facts are undisputed. The individual’s employer, a Department of Energy (DOE)
contractor, requested a security clearance on the individual’s behalf. In response to that request,
the local security office (LSO) conducted an investigation of the individual. During the course of
that investigation, the LSO obtained information about the individual that raised security
1An 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
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA
website located at http://www.oha.doe.gov . The text of a cited decision may be accessed by
entering the case number of the decision in the search engine located at
http://www.oha.doe.gov/search.htm.
2
concerns. In order to resolve these concerns, the LSO summoned the individual for an interview
(PSI) with a personnel security specialist in January 2014.
The PSI failed to resolve security concerns about the individual’s personal conduct and about his
mental and emotional health. Regarding his personal conduct, the individual admitted that:
 during his years in college in the early 2000s, he intentionally cheated on tests in order to
obtain a higher grade point average and a better job;
 from 1997 to 2011, he illegally downloaded music and video games on over 100
occasions and, from 2006 to 2012, he received from his brother and his cousin music and
software that he believed was illegally downloaded;
 while working for a federal contractor in 2009, he deliberately used a personal thumb
drive to download sensitive company information, and to take that information home,
both of which he knew were against his employer’s policies. At an unrecalled time he
misplaced a thumb drive containing his employer’s protected information which allowed
access to his employer’s network. Although the information was not classified, he
indicated that his actions may have caused damage to his employer and to the United
States;
 he used logon and password information that was not his, and that he obtained from a
third party, for a website. This allowed him to use and access paywall-protected services
from November 2011 to December 2012 without authorization and without paying for
the services;
 in December 2012, he attempted to access his in-laws’ cable TV account without their
permission, in order to obtain free services; and
 during his January 2013 interview with an OPM investigator, he intentionally did not
disclose all relevant facts regarding his 2009 violations of his employer’s policies
concerning the handling of sensitive information, and he did not disclose these violations
to his employer.
During the PSI, the individual also discussed counseling that he had received while in college
for “stress, guilt, and . . . obsessive-compulsive tendencies.” DOE Exhibit (Ex.) 9 at 111. He
reported “obsessing” over the amount of toothpaste that remained in his mouth after brushing
his teeth, id. at 119-120, checking and re-checking doors and his computer at work to make sure
that they were locked, id. at 141-144, and not being able to discard empty bags of potato chips
for fear that they may contain bits of sensitive information. Id. at 145.
After the PSI, the LSO referred the individual to a local psychologist (hereinafter referred to as
“the DOE psychologist”) for an agency-sponsored evaluation. The DOE psychologist prepared a
written report based on that evaluation, and submitted it to the LSO. In that report, the DOE
psychologist noted other symptoms exhibited by the individual, including his unreasonably
thinking that someone outside the building at his place of work could see in through the window
and ascertain the password for his computer, and his fear that, when he washes and then dries
his hands at work, sensitive information might be transferred to the towel. DOE Ex. 6 at 3-4.
The DOE psychologist diagnosed the individual as suffering from Obsessive-Compulsive
Personality Disorder (OCPD), and opined that this is a mental illness that was causing or could
cause a significant defect in the individual’s judgment or reliability. Id. at 5.
3
After reviewing this report and the rest of the individual’s personnel security file, the LSO
determined that derogatory information existed that cast into doubt the individual’s eligibility
for access authorization. It informed the individual of this determination in a letter that set forth
the DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this
letter as the Notification Letter. The Notification Letter also informed the individual that he was
entitled to a hearing before an Administrative Judge in order to resolve the substantial doubt
concerning his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced 10
exhibits into the record of this proceeding and presented the testimony of the DOE psychologist
at the hearing. The individual introduced seven exhibits and presented the testimony of three
witnesses, in addition to testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As previously stated, the LSO concluded that the derogatory information outlined above, and
other information in the individual’s personnel security file, created a substantial doubt as to the
individual’s eligibility for a security clearance. Specifically, the LSO concluded in the
Notification Letter that this derogatory information pertained to paragraphs (h) and (l) of the
criteria for eligibility for access to classified matter or special nuclear material set forth at 10
C.F.R. § 710.8.
Under criterion (h), information is derogatory if it indicates that an individual has an illness or
mental condition which, in the opinion of a licensed clinical psychologist causes, or may cause, a
significant defect in his judgment or reliability. 10 C.F.R. § 710.8(h). As support for this
criterion, the Notification Letter cites the findings of the DOE psychologist.
Criterion (l) refers to information indicating that the individual has engaged in unusual conduct
or is subject to circumstances which tend to show that he is not honest, reliable or trustworthy; or
which furnishes reason to believe that he may be subject to pressure, coercion, exploitation or
duress which may cause him to act contrary to the best interests of national security. Such
conduct includes, but is not limited to, criminal activity. As support for its invocation of this
criterion, the Letter cites the individual’s admissions during the PSI about his personal conduct
that are outlined above.
These circumstances adequately justify the DOE’s invocation of criteria (h) and (l), and raise
significant security concerns. Certain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness. Also, credible, adverse information that may not be
sufficient by itself for an adverse determination can still raise a security concern, and may be
disqualifying, if, when combined with all available information, it supports a whole-person
assessment of questionable judgment, dishonesty, lack of candor, unwillingness to comply with
rules or regulations, or other characteristics indicating that the person may not properly safeguard
classified information. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information, The White House (December 19, 2005), Guidelines E and I.
4
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, 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 or unfavorable, that has a bearing on the question of whether granting or
restoring 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).
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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. 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
A. Criterion (h)
At the hearing, the individual testified that he did not agree with the DOE psychologist’s
diagnosis of OCPD. Instead, he believes that he suffers from Obsessive-Compulsive Disorder
(OCD). Hearing Transcript (Tr.) at 63. He described the difference between the two Disorders as
being that a personality disorder means that the subject has character or personality flaws that
prohibit him or her from having normal relationships with others and from living a normal life,
whereas OCD is less severe and does not have these characteristics. Tr. at 112-113. The
individual added that he gained this understanding from a psychologist from whom he has been
receiving treatment for approximately the last three months. Tr. at 63. He further testified that he
has seen an improvement in his condition as a result of this treatment. He no longer takes as long
to make sure that his doors and his computer are locked, he no longer hoards empty potato chip
bags for fear that they contain sensitive information, and his wife and a friend have also observed
progress in his behavior. Tr. at 64-65, 118-119.
He then commented on the treatment that he has been receiving. His psychologist has prescribed
Alprazolam, an anti-anxiety drug. She has also employed a therapeutic technique whereby she
and the individual have given a name to that part of the individual that engages in the obsessive
5
behaviors, and the individual has had conversations with the obsessive part of himself about
those behaviors. Tr. at 125-126. The individual testified that this treatment has helped to ease his
symptoms, and that he intends to remain in treatment. Tr. at 70. The individual’s supervisor and
co-worker both testified that they have not observed any peculiar behavior on the individual’s
part at work, nor have they witnessed any behavior that would cause them to question the
individual’s judgment or reliability. Tr. at 13-14, 28-29.
The individual’s psychologist did not testify at the hearing, but instead submitted a written
report. Individual’s Exhibit (Ind. Ex.) G. In that report, she concluded that the individual does
not suffer from any personality disorders, but that he does
have several clinical syndromes none of which lie in the categories of the severe
personalities or in the severe clinical syndromes. The clinical syndromes found in
[the individual’s] personality are: depressive, dependent, masochistic, anxiety and
dysthymic. . . . That being said, I hasten to remind the reader that these are
clinical syndromes and not true pathology. These issues can be addressed and
remedied with behavioral therapy, rational-emotive techniques and medication.
Id. at 2. She went on to opine that “his compulsions and other forms of anxious behavior are an
elaborated defense against all thoughts, words and deeds of a sexual nature,” and that “in time
we will rid [the individual] of his self-imposed limitations.” Id.
After observing all of the testimony, the DOE psychologist altered her diagnosis from OCPD to
OCD. She testified that she initially diagnosed the individual as suffering from OCPD because
he met seven of the eight criteria for that diagnosis set forth in the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (DSM-V). However, she added that one feature of a
personality disorder is that it adversely affects the sufferer’s interpersonal relationships, and that
based on the testimony at the hearing, she concluded that the individual’s symptoms have “been
more problematic for him internally than interpersonally.” Tr. at 134. The DOE psychologist
went on to testify that OCD is also an illness or mental condition that causes or may cause a
significant defect in judgment or reliability, because it can adversely affect the accuracy of the
individual’s perception. Tr. at 143.
The DOE psychologist then commented on the report submitted by the individual’s psychologist.
As an initial matter, she noted the absence from the report of a DSM-V diagnosis, and she
testified that it would have been “helpful to know what the diagnosis was.” Tr. at 140. She
further observed that the report did not provide much information about the individual’s
treatment plan. Alprazolam, which is helpful for anxiety, is usually given on a shorter-term basis,
she said, and the most commonly given medication for OCD would be one of the serotonin
reuptake inhibitors (SRIs). This is normally coupled with a treatment technique called exposure
and ritual prevention, which involves getting the patient “habituated to the anxiety-provoking
triggers and letting them re-experience that without the anxiety.” Tr. at 141. The DOE
psychologist also observed that OCD treatment usually occurs on a weekly basis, whereas the
individual testified that he sees his psychologist approximately every two weeks. Tr. at 64, 141.
The DOE psychologist concluded that the individual’s prognosis would be good with ongoing
appropriate treatment. Tr. at 145. However, based on the individual’s psychologist’s report and
6
the other information before her, the DOE psychologist was unable to determine whether the
individual’s treatment met that description.
After reviewing this testimony and the record as a whole, I find that the individual has not
adequately addressed the DOE’s security concerns regarding his mental and emotional health. As
an initial matter, he had only been in therapy for three months as of the date of the hearing, and
by his own admission, his recovery has been “a slow process.” Tr. at 115. Although he testified
that his symptoms are not as severe as they once were, he is still experiencing some of the effects
of his disorder. He sometimes still repeatedly checks locks at home and at work, excessively
rinses out his mouth after brushing his teeth, and has concerns about someone outside of his
building ascertaining his password that most people might consider to be unreasonable. Tr. at
114-123. It is evident that the individual’s OCD is still affecting the accuracy of his perceptions.
Furthermore, like the DOE psychologist, I am unable to conclude that the individual is receiving
adequate treatment for his OCD. Assuming that the individual’s psychologist did, in fact,
diagnose the individual as suffering from OCD, the DOE psychologist’s testimony indicates that
the individual is not receiving the standard treatment for this disorder, and the individual’s
psychologist was unavailable to answer questions about her diagnosis or about the reasons for,
and the efficacy of, the individual’s treatment plan. The individual has reported an improvement
in his symptoms, but given my uncertainty about the nature and long-term efficacy of his
treatment, I am unable to conclude that the individual has adequately addressed the DOE’s
concerns under criterion (h) and Adjudicative Guideline I.
B. Criterion (l)
During his testimony, the individual also addressed the DOE’s concerns under criterion (l)
regarding his personal conduct. Regarding his cheating on tests in college during the early 2000s,
he testified that shortly after taking a leave of absence from the school, he wrote some of his
professors and confessed his improper actions. Tr. at 79. He said that his in-laws have let him use
other similar accounts of theirs, so he did not believe that they would object to his using their
cable company account to obtain free services. Tr. at 84. Concerning his inappropriate use of a
thumb drive, the individual testified that he was not aware at the time of his employer’s policy in
this area. He added that he is very much aware of his current employer’s prohibition against
using unauthorized media to store or transport sensitive information, and that he has not violated
this rule. Tr. at 70-73. With regard to all of the actions cited by the DOE under criterion (l), the
individual testified that he no longer engages in such behavior, that he sincerely regrets his
actions, and that he will not engage in similar behavior in the future. Tr. at 73-88. The
individual’s supervisor, co-worker and friend all testified that the individual is an honest and
reliable person who can safely be entrusted with access authorization.
Some of the individual’s improper behavior was relatively minor, and might not, if considered in
isolation, be sufficient to raise significant concerns about his judgment and reliability. However,
when taken as a whole, his actions support a whole-person assessment of questionable judgment
and dishonesty. Adjudicative Guidelines, ¶ 16(d). From 1997 to 2013, the individual repeatedly
obtained music, software, and online services that he was not entitled to and did not pay for,
cheated on tests while in college, violated a previous employer’s policies concerning the use of
7
information technology systems, and then, most significantly, deliberately withheld information
that he knew to be relevant about that violation during his OPM interview. During the hearing,
the individual testified that he later confessed his cheating on the tests, and that his extensive
involvement with his church and with his religion demonstrates that he is an honest and
trustworthy person. However, the mitigating value of these factors is significantly lessened by
the facts that the professors to whom he allegedly confessed were not the ones who administered
the tests on which he cheated, and that his religious involvement did not prevent him from
engaging in the unethical behavior in the first place. Significant security concerns remain
unresolved under criterion (l) and Adjudicative Guideline E.
V. CONCLUSION
For the reasons set forth above, I find that the individual has not adequately addressed the DOE’s
concerns under criteria (h) and (l). Consequently, he has failed to convince me that granting him
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 grant the individual a
security clearance at this time. Review of this decision by an Appeal Panel is available under the
procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: December 19, 2014