PSH-15-0026

*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: March 31, 2015 ) Case No.: PSH-15-0026
)
____________________________________)
Issued: July 2, 2015
______________________
Administrative Judge Decision
______________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (“the Individual”) to hold an
access authorization1 under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, Subpart A, entitled, “General Criteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.” As discussed below, after carefully
considering the record before me in light of the relevant regulations and the Adjudicative
Guidelines, I have determined that the DOE should not grant the Individual’s access
authorization at this time.
I. Background
The Individual is an employee of a DOE contractor in a position that requires that he hold a DOE
security clearance. To address security concerns raised during the investigation, the Local
Security Office (LSO) summoned the Individual for two interviews with a personnel security
specialist in June and July 2014. After these Personnel Security Interviews (PSIs), the LSO
determined that there was derogatory information that cast into doubt the Individual’s eligibility
for access authorization. The LSO informed the Individual of this determination in a letter that
set forth the DOE’s security concerns and the reasons for those concerns (Notification Letter).
The Notification Letter also informed the Individual that he was entitled to a hearing before an
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.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
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Administrative Judge in order to resolve the substantial doubt concerning his eligibility for an
access authorization.
On March 20, 2015, the Individual exercised his right under the Part 710 regulations to request
an administrative hearing. The LSO forwarded this request to the Office of Hearings and
Appeals (OHA), and the OHA Director appointed me the Administrative Judge. At the hearing,
the DOE introduced 13 exhibits (Exs. 1-13) into the record. The Individual presented the
testimony of three witnesses, including his own testimony, and no exhibits.2 See Transcript of
Hearing, Case No. PSH-15-0026 (Tr.).
II. Regulatory Standard
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 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). 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).
III. Notification Letter and Associated Security Concerns
As indicated above, the LSO concluded in the Notification Letter that derogatory information
exists that creates a substantial doubt as to the Individual’s eligibility to hold a security
clearance. That information pertains to the Bond Amendment (Section 1072 of the National
Defense Authorization Act for Fiscal Year 20083) and paragraph (l) of the criteria for eligibility
for access to classified matter or special nuclear material set forth at 10 C.F.R. § 710.8 (Criterion
L).
2 During the hearing, the Individual stated that he would present documentation after the hearing relating to his debt
obligations and payments. Tr. at 41. However, these documents were never submitted.
3 See DOE Order 472.2, Appendix E at E-1.
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The Bond Amendment provides that a Federal agency may not grant or renew a security
clearance for a covered person who has been convicted of a crime, was sentenced to
imprisonment for a term exceeding one year for that crime, and was incarcerated as a result of
that sentence for not less than one year. 50 U.S.C. § 3343(c)(1)(A). The security concerns cited
in the Notification Letter include the Individual’s 2005 mandatory one-year sentence for a
Habitual Offender conviction4 and the Individual’s 1994 conviction and four-year sentence, of
which he served 13 months, for Possession of Crack Cocaine with Intent to Distribute.
Although the LSO correctly invoked the Bond Amendment in this case, we note that the
Individual’s 2005 sentence and incarceration do not meet the Bond Amendment requirements,
because the Bond Amendment requires a sentence exceeding one year and incarceration for no
less than one year. The 2005 sentence was for exactly one year, and the Individual was
incarcerated for only eight months. Tr. 56-57. On the other hand, the Individual’s 1994 four-
year sentence and 13-month incarceration meet the requirements and, therefore, properly form
the basis of the LSO’s invocation of the Bond Amendment.
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. The
Criterion L security concerns cited in the Notification Letter include both instances of criminal
conduct and financial irresponsibility. Specifically, the Notification Letter cites the Individual’s
extensive criminal record, which dates back to 1990 and includes 19 arrests and charges, with the
last offense cited, a traffic offense, being in 2007.5 The Notification Letter also lists the
Individual’s various delinquent debts, some of which have already been sent to collection and
some which have current past due amounts, all of which total a little more than $10,000.
The foregoing conduct adequately justifies the DOE’s invocation of Criterion L. Criminal
conduct and 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. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19,
2005), Guidelines F and J. Accordingly, the criminal conduct and financial problems raise
serious security concerns.
IV. Findings of Fact and Analysis
The facts of this case are essentially undisputed. The Individual affirmatively acknowledged
both his criminal record and his debts listed in the Notification Letter. Tr. at 38- 51. At the
4 In Virginia, there is a mandatory one-year sentence for a conviction of a driving offense after being declared a
“habitual offender.” In the Individual’s case, he was stopped three times for driving without a license and on the
third occasion was sentenced to one year incarceration, of which he served eight months. Tr. 35-36.
5 Although the Individual’s last incarceration was in 2005, his last offense was in 2007 for a habitual traffic offense.
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hearing, the Individual describes the loss of his five-year-old daughter in a house fire in 2001 as
the event that served as “the beginning of the end of [him] running the streets.” Tr. at 33. After
that event, he decided to change his life and returned to working as an electrician, a trade he
enjoyed before he began his criminal lifestyle. Tr. 33-34. In speaking about his current financial
situation, the Individual stated that his financial troubles stemmed from being challenged in court
for child support for both of his living daughters at the same time. Ex. 11 at 64; Tr. at 43-44.
The Individual stated that paying for a lawyer to handle these cases led to him getting behind on
other financial obligations. Tr. at 65. Since working for his current employer, the Individual has
never failed a drug test, has never allowed his personal problems to affect his work, and is held
in high esteem by his supervisors. Tr. at 12, 14, 30.
As previously stated, under the Bond Amendment, a person is disqualified from holding an
access authorization if they have been convicted of a crime, sentenced to imprisonment for a
term exceeding one year for that crime, and incarcerated as a result of that sentence for not less
than one year. 50 U.S.C. § 3343(c)(1)(A). It is clear that a significant amount of time has
elapsed since the criminal activity relevant to the Bond Amendment, as well as the other cited
criminal conduct. The sentencing and incarceration relevant to the Bond Amendment occurred
in 1994 – over 20 years ago. Moreover, almost ten years have elapsed since the Individual’s
most recent criminal conduct – the 2007 conviction for habitual traffic offense. Outside of 2007
traffic offense, the Individual’s last criminal offense was in 1998, almost 17 years prior to the
hearing. Tr. 38-39. Aside from the passage of time, the Individual testified persuasively that, as
the result of the death of a daughter, he determined to turn his life around and has done so.
Further, his supervisors both testified to his present honesty and reliability. Tr. at 12, 22, 25, 30.
He has the use of a business credit card and truck. He has never abused either privilege, even
going so far as to report an out-of-state accident with the truck that the supervisor testified he
would have no knowledge of. Tr. at 12. His direct supervisor testified, “he was able to prove
himself . . . to me. As time has passed he has been able to do that more and more to the point to
where I trusted him with actually supervising an entire crew out of state where he has to be eyes
and ears for the company.” Tr. at 11. Because his criminal behavior is not recent and because
there is clear evidence of rehabilitation, I find that the Individual has mitigated the security
concerns arising from past criminal conduct. Guideline J, ¶ 32 (a), (f).
Nonetheless, I cannot find that the Individual has mitigated the Criterion L security concerns
relating to his ongoing financial struggles. The Individual is still having difficulties meeting his
different financial obligations. He is currently delinquent by at least 60 days on seven accounts.
Guideline F, ¶ 20 (a); Notification Letter; Ex. 6. These financial difficulties are not isolated and
involve a range of accounts and debts for amounts both small and large. Guideline F, ¶ 20 (b);
Notification Letter; Ex. 6. This seems to indicate that even when able to clear certain debts, the
Individual has not done so. Furthermore, the Individual presented no evidence during the
hearing to show that he had received or was receiving financial counseling for his problems in
order to work towards getting his debt under control or resolved. Guideline F, ¶ 20 (d). Instead,
the Individual has in the past used loans from his employer to lighten his debt obligations, opting
to pay back his employer instead of a creditor. Tr. 24-25; Ex. 11 at 31-32. This, however, is not
a viable long term solution for the Individual’s financial problems. Thus, the Individual has not
mitigated these security concerns by resolving his debts. Guideline F, ¶20 (f). During the
hearing, the Individual made reference to numerous payment plans he set up in order to pay
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down his various debts. Tr. 39-51. These claims, however, remain uncorroborated. Despite
statements during the hearing that he would provide documentation as to the payments currently
being made on his delinquent accounts, he never did so before the record was closed. Tr. at 41.
In prior cases involving financial considerations, Administrative Judges 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, e.g., Personnel Security
Hearing, Case No. PSH-14-0048 (2014); Personnel Security Hearing, Case No. TSO-1078
(2011); Personnel Security hearing, Case No. TSO-0878 (2010).6 For the reasons stated above,
the Individual has clearly not demonstrated sustained financial responsibility. Though it seems
that the Individual has made some effort in repairing his finances, I cannot find that the concerns
raised by the LSO have been sufficiently resolved. See 10 C.F.R. § 710.7(c).
V. Conclusion
For the reasons set forth above, I find that the Individual has sufficiently mitigated the security
concerns under the Bond Amendment and Criterion L, regarding his past criminal activity and
incarceration. However, I also find sufficient derogatory information in the possession of the
DOE that raises serious security concerns relating to the Individual’s financial irresponsibility
under Criterion L. After considering all the relevant information, favorable and unfavorable, in a
comprehensive common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I have found that the Individual has not brought forth sufficient
evidence to mitigate all of the security concerns at issue. I therefore find that granting the
Individual’s access authorization will endanger the common defense and is inconsistent with the
national interest. Accordingly, I have determined that the Individual’s access authorization
should not be granted. The parties may seek review of this Decision by an Appeal Panel under
the regulations set forth at 10 C.F.R. §710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: July 2, 2015
6 Decisions issued by the Office of Hearings and Appeals are available on the OHA website at
http://www.energy.gov/oha.