PSH-15-0014

*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: February 27, 2015 ) Case No.: PSH-15-0014
)
____________________________________)
Issued: May 29, 2015
______________________
Administrative Judge Decision
______________________
Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 restore the Individual’s access authorization.
I. BACKGROUND
The Individual is a DOE contractor employee and has held a security clearance since 2009.
Exhibit (Ex.) 3 at 1. The Local Security Office (LSO) received information in May 2014 that
local police had arrested the Individual for Child Abuse. Ex. 5 at 3. The LSO conducted a
personnel security interview (PSI) with the Individual in June 2014 (June 2014 PSI). Ex. 16.
Because the June 2014 PSI did not resolve the security concerns raised by the Individual’s May
2014 Child Abuse arrest and prior arrests for varying offenses, the LSO issued the Individual a
notification letter suspending his security clearance (Notification Letter). Ex. 1. Additionally, the
Notification Letter outlined the specific derogatory information, described in 10 C.F.R. § 710.8
(l) (Criterion L), which created doubt regarding the Individual’s continued eligibility to hold a
security clearance.2 The Notification Letter informed the Individual that he was entitled to a
1 An access authorization is an administrative determination that an individual is eligible for access to classified
matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Decision as an
access authorization or a security clearance.
2 Criterion L refers to information indicating that an individual has “[e]ngaged in any unusual conduct or is subject
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hearing before an Administrative Judge 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 19
exhibits (Exs. 1-19) into the record of this proceeding. The Individual introduced eight exhibits
(Ex. A-H) into the record and offered his testimony as well as the testimony of his girlfriend
(Girlfriend), his supervisor (Supervisor), a friend (Friend), and an Employee Assistance Program
counselor (EAP Counselor).3
II. 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 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 Revised
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information that set
forth a more comprehensive listing of relevant factors. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19,
2005) (Adjudicative Guidelines).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.” 10 C.F.R.
§ 710.21(b)(6). Once the DOE has made a showing of derogatory information raising security
concerns, the burden is on the Individual to produce evidence sufficient to convince the DOE
that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The
regulations further instruct me to resolve any doubts concerning the Individual’s eligibility for
access authorization in favor of the national security. 10 C.F.R. § 710.7(a).
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 I have renumbered the Individual’s Exhibits as follows: Ex. A (Notice of Dismissal of Child Abuse charge); Ex. B.
(court records relating to Individual arrest in June 2013 for Driving While Under the Influence of Intoxicating
Liquor or Drugs (DWI)); Ex. C (June 2013 DWI Case Docket); Ex. D (Stipulated No Contact Order between the
Individual and his ex-wife); Ex. E (Closure of ex-wife’s request for an Order of Protection); Ex. F (Individual’s
most recent workplace performance evaluation); Ex. G (EAP Counselor’s notes); Ex. H (DOE-contractor
psychologist (DOE Psychologist) November 2013 evaluative report (Report) on the Individual).
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II. THE SECURITY CONCERN AND EVIDENCE PRESENTED
A. Derogatory Information
During the period 1993 through 2000, the Individual was arrested or cited for Driving While Under
the Influence of Intoxicating Alcohol (DWI) on four occasions. Additionally, during this period, the
Individual’s ex-wife filed two domestic violence complaints (in May 1996 and May 1998) and
requested an Order of Protection in July 1999. During 2012 through 2014, the Individual was subject
to a Temporary Order of Protection requested by his ex-wife (October 2012), an arrest for DWI (June
2013), and an arrest for Child Abuse – Intentional (May 2014). Ex. 1; Ex. 4; Exs. 16-19.
During his employment at the DOE facility, the LSO conducted three prior PSIs (conducted in
November 2011, November 2012, and September 2013). Exs. 18-19. The LSO also sent a Letter of
Interrogatory to the Individual in January 2009. Ex. 12. In each of these events, LSO directed the
Individual’s attention to the DOE’s concern with criminal offenses conducted by its clearance
holders.
B. Security Concern
In its Notification Letter, the LSO invoked Criterion L to support its suspension of the Individual’s
security clearance. Specifically, the LSO cited the Individual’s history of arrests and complaints as
Criterion L derogatory information supporting its decision to suspend the Individual’s security
clearance. Ex. 1. Criminal activity 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. Adjudicative Guidelines, Guideline J. Given the Individual’s history
of arrests and complaints outlined above, the LSO had sufficient grounds to invoke Criterion L
C. Evidence of Mitigation
At the hearing, the Individual, for the most part, did not dispute the record of incidents set forth in the
Notification Letter. However, the Individual noted that all but three of the cited incidents occurred
over 15 years ago. Further, the Individual asserted that, of the three remaining incidents, two
involved domestic situations based upon false accusations. Finally, the Individual asserted that the
third incident, a June 2013 arrest for DWI, reflected an isolated incident of poor judgment.
1. The Domestic Incidents
a. 2012 Temporary Protective Order
The Individual testified about his problems with his ex-wife while they were married. The Individual
recounted that his ex-wife would create incidents to jeopardize his position at the DOE facility. Tr. at
124. The Individual’s ex-wife, who worked at the same DOE facility as the Individual and had an
access authorization, stole his ID badge on two separate occasions. One of the occasions was
prompted when the Individual, on advice of the EAP Counselor, sought to get a restraining order on
his ex-wife. Tr. at 126-27. His ex-wife asked him not to do so because it could affect her security
clearance and “involve the kids in all kinds of counselling.” Tr. at 127. The Individual withdrew his
request for the order. Tr. at 127. However, after talking to his Supervisor, he decided to reinstate his
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request for a Protective Order. Tr. at 127. His ex-wife found out and confronted him in front of a
local bank and began to curse him. The Individual’s ex-wife hit him and he then ran into the bank
with his ex-wife in pursuit. Tr. at 127.
The Individual testified that a week later he was informed by a gasoline station attendant that a
woman went into his car and ran away with a set of keys. Tr. at 127. At the time, he kept his badge in
a black bag underneath the seat in his automobile and the bag was missing. The Individual
immediately reported the incident to the local police. His son later borrowed the Individual’s car for a
week. After his son returned the car, the Individual found a prior ID badge he had earlier reported
stolen. Tr. at 130-31. The Individual testified that he suspected his ex-wife of stealing the ID badge.
See also Ex. 17 at 52, 67. The Supervisor testified that he initiated an investigation of the missing
badge incidents and the ex-wife’s involvement in these incidents. The Supervisor testified that, as a
result of the investigation, the ex-wife was terminated from her position at the DOE facility. Tr. at
119.
The Friend testified about an incident involving the Individual and his ex-wife that occurred within
the past five years. Tr. at 12-13. The Individual drove into the Friend’s driveway on his motorcycle
next to the Friend’s car. Tr. at 13. The Individual’s ex-wife (then still married to the Individual) then
drove up in her automobile and pushed the Individual’s motorcycle into the Friend’s vehicle,
damaging that vehicle and causing the Individual to fall off his motorcycle. Tr. at 13. The ex-wife
then left and the Friend came out to check on the Individual. The Individual informed her that, after
an argument, his ex-wife had followed him to the Friend’s house. Tr. at 13-14. The Friend testified
that, in the past, the Individual felt that it was safest go to her house after he would have an argument
with his ex-wife. Tr. at 14. The Friend stated she had observed the Individual with his children and
noted he was “very good with his kids.” Tr. at 15.
According to the available court records, in October 2012, the Individual’s ex-wife petitioned a local
court for a Temporary Protective Order from the Individual. Ex. 11. The local court granted the
petition and scheduled another hearing three days later, at which the Individual could respond to the
allegations and the local court could consider whether to issue a permanent Order of Protection
against the Individual. Ex. 11. At the next hearing, the local court considered and granted the
Individual’s request for a permanent Protective Order against his ex-wife. Ex. 10. Specifically, the
local court found that the Individual had been subject to acts of domestic violence involving two
confrontations: an incident where the ex-wife harassed the Individual while both were driving
vehicles on a state road and the local bank incident, described above. Ex. 10 at 7-8. According to the
Individual, at the second hearing, his ex-wife claimed that he had broken into their house, hit her, and
threatened to kill her if she did not move out of the house. Tr. at 134. His ex-wife also offered
pictures of her alleged injuries. The judge declined to accept his ex-wife’s pictures as evidence that
the Individual had hit her and did not grant her a (non-temporary) Protective Order from the
Individual.4 Tr. at 134-35. Eventually, after negotiations with his ex-wife’s attorney as part of their
custody plan for their children, the Individual’s Protective Order against his ex-wife was modified in
November 2012 into a mutual No Contact Order. Tr. at 136; Ex. D (mutual stipulated No Contact
Order). Nonetheless, the Individual testified that his ex-wife had told others that certain of her family
members were going to kill the Individual. Tr. at 135-36.
4 The ex-wife’s Temporary Order of Protection was closed by the court for “lack of activity” in February 2014.
Ex. E.
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b. 2014 Child Abuse Arrest
The Individual testified that, when he moved out of the house that he and his ex-wife were living in,
his daughter elected to live with him.5 Tr. at 123. However, before the Child Abuse arrest, his
relationship with his daughter, now 17 years old, had been deteriorating. Tr. at 122-23. His daughter
used marijuana and was very verbally abusive towards him. Tr. at 143. After the mutual no contact
order, the Individual’s ex-wife kept her distance but would occasionally make an obscene gesture at
him. Tr. at 136.
The Individual’s Girlfriend testified that, at the time of the Child Abuse arrest, she and her daughter
were temporarily staying at the Individual’s house along with the Individual and his daughter. On the
night of the arrest, the Girlfriend, the Girlfriend’s daughter, and the Individual returned to the
Individual’s residence from a party. Tr. at 28-29. After they arrived, the Individual’s daughter began
to argue with the Girlfriend’s daughter, accusing the Girlfriend’s daughter of taking a shirt belonging
to the Individual’s daughter. Tr. at 29. When the Girlfriend went to intervene in the argument, the
Individual’s daughter called her a “whore.” Tr. at 29. The Girlfriend left the argument and decided to
let the Individual deal with the dispute. Tr. at 29.
During the argument which led to his arrest, the Individual, around midnight, called the local police
to help him prevent his daughter from driving away from the house.6 Tr. at 138. The Individual was
concerned about his daughter’s safety if she drove from the house in an irrational state. Tr. at 140.
The local police informed him that they were also speaking to his daughter and that they would get
back to him. Tr. at 139. The Individual then tried to get the keys to his vehicle away from his
daughter because he believed that she was in an irrational state. Tr. at 139-40. As he put his arms
around his daughter to get the keys, she resisted and he fell on top of her on the daughter’s bed. Tr. at
140. The Individual testified that he immediately got up and retrieved the keys and at no time did he
hit his daughter. During this time, the Individual’s daughter stated “he’s hitting me” and “stay back.”
Tr. at 140.
The Girlfriend testified that after the Individual went into his daughter’s room the Girlfriend heard
the daughter say “Stop hitting me. Stop hitting me.” Tr. at 30. The Girlfriend went into the room but
did not see the Individual hitting his daughter. She also noticed that the daughter’s cell phone was on
and connected to her mother (the Individual’s ex-wife). The Individual then asked his daughter for
the keys to her car and she became angry with him. Tr. at 31. Later, the Individual’s daughter left the
Individual’s residence. Around 3:00 a.m. the Girlfriend and the Individual were arrested. Tr. at 31.
According to the Girlfriend, several days later she and the Individual were subject to an investigation
by a State child protective service agency. The Girlfriend and the Individual later received a letter
from the agency stating that the agency did not find any evidence of child abuse. The State’s
Attorney later dismissed the case.
5 His daughter did not have any contact with his ex-wife until a couple of weeks before the Child Abuse arrest. Tr. at
123.
6 According to the Individual, his daughter used words to the effect that “[W]ell give me some damn gas money
because I’m going to get the [F] out of here.” Tr. at 140.
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The EAP Counselor testified that she had been seeing the Individual since September 2012. Tr. at 74;
Ex. G at 64. The Individual sought help regarding domestic problems regarding his ex-wife’s verbal
and physical abuse and her stalking of the Individual. Tr. at 66. She has seen the Individual for 35
sessions and initially worked with the Individual with regard to marital domestic violence issues. Tr.
at 78. The Individual also consulted her with regard to his recent arrest for Child Abuse. Tr. at 84.
From her understanding of the Individual’s situation, she believes that the Individual’s daughter is
“quite volatile and is involved in a conflicted separation and divorce between the Individual and his
ex-wife.” Tr. at 85. The EAP Counselor testified that the Individual told her about what had
happened in the incident that led to his Child Abuse arrest. Tr. at 87. Throughout her therapy with the
Individual, she believes that the Individual has always been forthright with her. Tr. at 101-06.
The EAP Counselor testified that the Individual had reported several incidents of stalking by his ex-
wife. Tr. at 92. Based upon the information she received from the Individual, the EAP Counselor
believes that his ex-wife “could be the perpetrator of domestic violence, physical abuse, and
stalking.” Tr. at 92. She went on to note in her testimony that it is not uncommon for females to stalk
men. Tr. at 92. In the Individual’s case, when he decided to leave his ex-wife, her harassment of the
Individual began to escalate, a phenomenon which is common in domestic-violence relationships. Tr.
at 112. When one party leaves such a relationship, the other party will often increase the level of
violence. Tr. at 112. The EAP Counselor’s concern was sufficiently great that she personally escorted
the Individual to the LSO to report on his ex-wife’s harassment. Tr. at 92.
In sum, the EAP Counselor believes that the domestic events are part of a dysfunctional family
system and not a matter of criminal intent. Tr. at 101. She does not believe that the Individual
committed any domestic violence or that he would commit violence toward a family member. Tr. at
101-02, 111.
2. 2013 DWI Arrest
In the September 2013 PSI, the Individual stated that he and his Girlfriend were riding on the
Individual’s motorcycle and stopped for several drinks at a bar. Later when he and his Girlfriend left
the bar he was pulled over for going 36 miles per hour in a 25 mile per hour zone. Ex. 17 at 11-12.
After being administered two breathalyzer tests, the local police officer who stopped him stated that
his blood alcohol results were .08 and .09. Ex. 17 at 29. The Individual acknowledged in the
September 2013 PSI that in consuming alcohol and driving he “made a stupid mistake.” Ex. 17 at 42.
The Girlfriend’s testimony concerning the DWI arrest is similar to that the Individual recounted in
the September 2013 PSI. Tr. at 43-44. She did not believe that, at the time of the arrest, the
Individual was intoxicated. Tr. at 44.
With regard to the September 2013 DWI arrest, the EAP Counselor testified that the Individual
consulted with her after his arrest. She testified that she does not believe that the Individual
intentionally became intoxicated or intentionally disregarded the law. Tr. at 102. She based her
assessment on the fact that the Individual’s blood alcohol level tested the minimum level of 0.08 and
the fact she believes that the Individual has been truthful with her in their sessions. Tr. at 102-03.
3. Pre 2001 Incidents
The Individual does not deny his pre-2001 history of arrests and the other incidents listed in the
Notification Letter. However, he denies that he committed any type of domestic battery or violence
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against his ex-wife in the three pre-2001 incidents recorded in the Notification Letter.7 Tr. at 146.
The Individual does not remember the incidents that led to the May 1996 or May 1998 complaints
filed by his ex-wife. Tr. at 159. Nonetheless, the Individual does not deny that the charges were filed
against him. Tr. at 147. With regard to the July 1999 complaint, the Individual and his ex-wife began
to argue and the Individual left their residence to go to his mother’s house. Tr. at 157. The
Individual’s ex-wife followed him and confronted him there. The ex-wife attempted to slap the
Individual and the Individual’s mother blocked the ex-wife from slapping the Individual. Tr. at 157.
The ex-wife later filed charges alleging that the Individual slapped her. Tr. at 157. At the hearing
concerning the charge, the Individual testified that the Judge ordered both of them not to see each
other but that, in order to continue to see each other, they later moved out of the court’s jurisdiction.
Tr. at 157-58.
The Individual testified that he did not deny the facts of his pre-2001 DWI arrests. He stated that he
was not convicted for a 1993 DWI arrest because the officer did not show up for the hearing date. Tr.
at 159. As for a July 1994 arrest for DWI and possession of a controlled substance, the Individual did
not know that he had also been cited for the possession of a controlled substance, a marijuana
cigarette found in the back seat of the vehicle (his mother’s car) he was riding in, until DOE had
notified him. Tr. at 163.
The Individual also submitted into the record a psychological evaluation performed by the DOE
Psychologist which was prompted, in part, by his June 2013 DWI arrest. Ex. 14 at 2. In his Report,
the DOE Psychologist found that the Individual’s consumption of alcohol is not at a level that it
warrants DOE’s concern about habitual use to excess and that the Individual does not have an illness
or mental condition that could cause a defect in his judgment and reliability. Ex. 14 at 7-8.
III. FINDINGS OF FACT AND ANALYSIS
The security concern in this case centers on the Individual’s history of arrests and other incidents.
Among the factors which could serve to mitigate security concerns raised by criminal conduct, as
listed in the Adjudicatory Guidelines, are (1) so much time has elapsed since the criminal behavior
happened, 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; (2) the person was
pressured or coerced into committing the act and those pressures are no longer present in the person’s
life; (3) evidence that the person did not commit the offense; and (4) there is evidence of successful
rehabilitation; including but not limited to the passage of time without recurrence of criminal activity,
remorse or restitution, job training or higher education, good employment record, or constructive
7 The Notification Letter records that the Individual’s ex-wife filed complaints against the Individual in May 1996
for Domestic Violence and Assault and in May 1998 for Domestic Violence. Ex. 1. In July 1999, the Individual had
an Order Prohibiting Domestic Violence and an Order of Protection filed against him in July 1999. Ex. 1. My
examination of the record fails to find any reference to these May 1996 and May 1998 complaints or the July 1999
Order in a 2008 Office of Personnel and Management Background report that is cited in the Notification as being the
source of this derogatory information. In his September 2013 PSI, the Individual did not recall the circumstances
regarding the May 1996 and May 1998 complaints but asserted that no criminal charges were filed against him as a
result of these complaints and that both he and his ex-wife were required to go to counselling as a result of the
charges. Ex. 13 at 109-11. However, these charges are referenced in a Case Evaluation Sheet. Ex. 3. Nonetheless,
the Individual does not deny that the May 1996 and May 1998 complaints and the 1999 Order of Protection were
filed against him. Tr. at 147.
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community involvement. Adjudicative Guideline J at ¶ 32 (a)-(d); Personnel Security Hearing, Case
No. PSH-13-0044 (2013).
If the only incidents before me occurred before 2001, I would find that the passage of time has
sufficiently mitigated any security concerns related to those incidents. However, the Individual has
been involved in two arrests and has had a request for a protective order filed against him in the past
two and one-half years. Those incidents center around two areas of conduct – his domestic relations
with his family and his DWI arrest. I consider each of these areas of concern below.
1. Domestic Incidents
From the record before me it is apparent that, before the Individual left his ex-wife, the Individual’s
domestic situation could be described as chaotic and dysfunctional. My assessment is supported by
the professional opinion of the EAP Counselor who has been working with the Individual over the
course of several years and 35 visits. Based upon the testimony of the EAP Counselor and the other
witnesses, I find that it is very likely that the Individual has been subject to physical and
psychological abuse as well as stalking by his ex-wife. Further, I find his Friend’s testimony
concerning the incident where the ex-wife struck the Individual with her vehicle as compelling
evidence of the ex-wife’s extreme animus against the Individual. This animus is confirmed by the
Supervisor’s testimony concerning the theft of the Individual’s badges and the contractor’s resulting
decision to remove the Individual’s ex-wife’s from her position at the DOE facility. Based upon this
evidence, I find that the allegations contained in the Individual’s ex-wife’s request for a Temporary
Protective Order in October 2012 are without merit and that this allegation raises no security
concern.
With regard to the Child Abuse arrest, there is evidence indicating that the Individual and his
daughter were having significant relationship problems. In the September 2013 PSI, the Individual
stated that since his daughter moved in with him in July 2012, the Individual suspected that she may
have been using marijuana. Ex. 13 at 119. Approximately in May 2013, the Individual found illegal
drug paraphernalia in his house and contacted the local police. Ex. 13 at 120-21. The Individual’s
daughter became angry and, after the Individual refused to give his daughter the keys to his
automobile, began to break windows in the Individual’s residence. Ex. 13 at 121-22. The local police
arrested the Individual’s daughter for destruction of private property and illegal drug possession.
Ex. 13 at 122. The Individual’s daughter was required to see a juvenile parole officer and attend a
four-hour class concerning domestic abuse. Ex. 13 at 124. Later, in July 2013, the Individual also
found more illegal drug paraphernalia in his daughter’s room. Ex. 13 at 128.
The Individual’s Girlfriend stated in her testimony that the Individual’s daughter would curse
occasionally at the Individual. Tr. at 20; see also Tr. at 143 (Individual’s testimony). The Individual’s
Girlfriend also testified that the Individual’s daughter would become angry if the Individual
attempted to discipline her. Tr. at 20.
Given the Individual’s daughter’s history of anger, I find the Individual’s account of the incident
leading to the May 2014 Child Abuse arrest to be believable. I also note that the Individual’s
testimony at the hearing and the account he gave during the June 2014 PSI have been consistent with
regard to the events that led to the Child Abuse charge. Finally, I note that although the police report
noted injuries to the daughter’s forehead and right arm, Ex. 5 at 5, the local child protective agency
who investigated the incident determined that the Individual’s daughter had no visible injuries caused
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by the Individual, and the agency found no other evidence to support an allegation of physical abuse
due to excessive or inappropriate discipline.8 Ex. 6 at 2.
Given the factual background presented above, specifically, the report from the local governmental
child protective service that it did not find any evidence of abuse, and the local prosecutor’s decision
not to prosecute the Child Abuse Charge against the Individual, I find there is sufficient evidence to
mitigate the security concern arising from this arrest. See Ex. A (order dismissing the Child Abuse
charge against the Individual). I also note that the Individual’s daughter (as well as his ex-wife) now
lives apart from the Individual as part of the mutual no contact order negotiated between him and his
ex-wife and that this lowers the risk of future domestic incidents between the Individual and his
daughter. Tr. at 142.
2. DWI Arrests
In this case, the security concern raised by the Individual’s arrests for DWI is not, per se, the
intoxication caused by excessive use, but by the Individual’s failure to conform his behavior to the
criminal code on a number of occasions. See Tr. at 100.
A period of almost 13 years elapsed from his DWI arrest in June 2013 and his last DWI arrest in
February 2000. If I discount the 2014 arrest for Child Abuse and the October 2012 Order of
Protection, then the only criminal activity that the Individual has been responsible for in the past 12
years is the June 2013 arrest. After considering the record, I find that the Individual’s June 2013 DWI
arrest is not a part of a pattern of criminal conduct or that it reflects an unwillingness to comply with
regulations. The DOE Psychologist’s Report indicates that the Individual does not have an alcohol
use problem that will make him incapable of complying with the law. I find the June 2013 DWI
arrest represented an isolated error in judgment especially in light of his 12 year prior history of no
DWI arrests. The Individual has promptly reported all incidents to the LSO while holding a clearance
and has excellent work performance. I also find it significant that the LSO determined that the period
between the Individual’s June 2013 DWI arrest and his prior pre-2001 DWI was such that the
security concern raised by the June 2013 DWI arrest had been sufficiently mitigated. Ex. H at 15
(May 2014 LSO Case Evaluation Sheet finding that concerns raised by June 2013 DWI arrest
mitigated by passage of time as referenced in Adjudicative Guidelines, Guideline G).
V. CONCLUSION
Given my findings and analysis of the evidence before me I find that the Individual has
established the presence of Adjudicative Guideline mitigating factors at ¶ 32 (a)(3), with regard
to the Child Abuse arrest and the other alleged domestic incidents, and ¶ 32 (a)(4), regarding his
complete history of arrests and domestic incidents. I believe that the risk of future incidents
arising from his domestic relationship is significantly reduced given his separation from his wife
and daughter. The Individual has not had any alcohol-related incidents since his June 2013 DWI
8 While not listed as derogatory information in the Notification Letter, the Girlfriend testified that one or two months
before the Child Abuse arrest, the local child protective agency received an anonymous call reporting that she and
the Individual were neglecting their children by not having food in the house. Tr. at 22. The agency contacted the
Girlfriend on her cell phone which she found unusual. Tr. at 22. After an investigation, the local child protective
agency found there was no evidence of child neglect. Tr. at 22.
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arrest and does not suffer from any type of significant alcohol use disorder that would put him an
unacceptable risk for future DWIs.
For the reasons set forth above, I conclude that the Individual has adequately mitigated the
DOE’s Criterion L security concerns raised by the Notification Letter. Consequently, I also find
that the Individual has 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, at this time, should 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: May 29, 2015