PSH-15-0086

*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: October 19, 2015 ) Case No.: PSH-15-0086
)
_________________________________________ )
Issued: March 11, 2016
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of xxxxxxxxxxxxxxxxxxx (hereinafter referred to as “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 fully
discussed below, after carefully considering the record before me in light of the relevant
regulations and Adjudicative Guidelines, I have determined that the individual’s request for access
authorization should not be granted.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In March 2015, as part of a background investigation, the Local Security Office
(LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about
the individual’s criminal conduct. On October 16, 2015, the LSO sent a letter (Notification Letter)
advising the individual that it possessed reliable information that created substantial doubt
regarding his eligibility to hold an access authorization. In an attachment to the Notification Letter,
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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the LSO explained that the derogatory information fell within the purview of one potentially
disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsection (l)
(hereinafter referred to as Criterion L).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and the
OHA Director appointed me as the Administrative Judge in this case. At the hearing that I
convened, the individual testified on his own behalf. The DOE counsel did not present any
witnesses. The LSO submitted 10 exhibits into the record; the individual tendered five exhibits.
The exhibits will be cited in this Decision as “Ex.” followed by the appropriate numeric or
alphabetic designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.3
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the
government has the burden of proving the defendant guilty beyond a reasonable doubt. Rather,
the standard in this proceeding places the burden on the individual because it is designed to protect
national security interests. This is not an easy burden for the individual to sustain. The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denial”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that granting
his 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 individual is afforded a full
opportunity to present evidence supporting his eligibility for an access authorization. The Part 710
regulations are drafted so as to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay may be admitted. 10 C.F.R. § 710.26(h).
Hence, an individual is afforded the utmost latitude in the presentation of evidence to mitigate the
security concerns at issue.
2 Criterion L relates to information that a person 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 OHA decisions are available on the OHA website at www.energy.gov.
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B. Basis for Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative Judge to
issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s 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). I am instructed
by the regulations to resolve any doubt as to a person’s access authorization in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously mentioned, the Notification Letter cites one potentially disqualifying criterion as a
basis for denying the individual’s security clearance, Criterion L. To support its reliance on
Criterion L, the LSO alleges that the individual has a pattern of criminal conduct, citing over 10
charges and arrests. The individual’s vulnerability to blackmail, exploitation, and duress calls into
question the individual’s judgment, reliability, trustworthiness and his ability to protect classified
information. See Guideline J of the 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).
IV. Findings of Fact
The individual has an extensive history of criminal conduct. During a March 2015 PSI, the
individual admitted that he used and purchased marijuana once a week for three months in 1990
and then once every three years until 2001. He purchased and used cocaine or crack cocaine once
a week between 1994 and 1996 or 1997 and once a week for about a two-month period in 2002 or
2003. Between 1994 and 1996, the individual was arrested and charged with Domestic Violence
five to ten times after he got into arguments with his mother. In approximately 1995, the individual
was arrested and charged with Grand Larceny after he stole his mother’s stereo and sold it to buy
drugs. He was subsequently sentenced to a rehabilitation facility. However, on April 2, 1997, he
was charged with Battery with a Deadly Weapon (Felony) and Burglary with Use of a Deadly
Weapon (Felony) after he escaped from the facility. The individual was transferred to the county
jail for 10 months after pleading guilty to the Burglary. After being released, he was placed on
four years of probation. In March 1998, he violated probation by being arrested for Reckless
Driving and was returned to jail for four months. Exs. 1 and 3.
In November 1999, the individual was arrested and charged with Driving While Intoxicated,
Unlawful Acts and Reckless Driving. At the time, he was a minor and was on probation for another
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charge. He later pled guilty to Reckless Driving and served 35 days in jail. In October 2001, he
was arrested and charged with Driving Under the Influence of Alcohol with Accident, Unlawful
Acts, Exceptions, and Insurance after he drove while intoxicated, swerved off the road and hit a
tree. During his PSI, the individual admitted that he had never appeared in court on the charges
and that the warrant is still active. On July 3, 2002, the individual was cited for Driving Without
Insurance and Expired License Plates (on September 26, 2002, an arrest warrant was issued for
Failure to Appear on the charges and on September 27, 2002, he was arrested on the warrant).
Again, on July 13, 2002, the individual was arrested and charged with Driving While Ability
Impaired, Driving Under the Influence of Alcohol, Registration, Fictitious Plate, Kidnapping,
False Imprisonment, Domestic Violence, Invasion of Privacy, Wiretapping, Prevent
Communication, Criminal Mischief and Assault-Menacing. The individual was intoxicated at the
time and got into an argument with his mother who called the police after he left (on May 24, 2004,
an arrest warrant was issued for Failure to Appear on the charges and on June 14, 2005, he was
arrested on the warrant). In addition, on July 15, 2002, the individual’s mother applied for a
Temporary Restraining Order, which was later made permanent and was not dismissed until
May 15, 2015. During his PSI, the individual admitted that he believed his mother applied for the
restraining order because she felt threatened by him. Id.
On December 16, 2003, the individual was cited and charged with Driving Under the Influence of
Alcohol and Defective Vehicle after he drove while intoxicated and was pulled over for a headlight
malfunction. On January 13, 2004, he was again cited and charged with Driving While Ability
Impaired after he drove while intoxicated. The charges were combined, and the individual left the
state and did not initially go to court on the charges. However, on June 7, 2004, an arrest warrant
was issued for Failure to Appear when he failed to appear on the charges. Subsequently, on
June 14, 2004, the individual returned to the state and turned himself in. He thought he had taken
care of the requirements, but had not. On December 10, 2007, a warrant was issued for Failure to
Appear. In January 2013, the individual was notified by mail that he had an active warrant in the
state. On his way to turn himself in, on March 9, 2013, the individual was involved in an accident.
He was then arrested on the warrant that was issued for failing to appear on previous charges. He
was also cited and charged with Failure to Display Insurance and Speeding Too Fast for
Conditions. The individual appeared in court on May 14, 2015, and was remanded from the
courtroom to begin a 15-day jail sentence. Id.
V. Analysis
I have thoroughly considered the record in this proceeding, including the submissions tendered in
this case and the testimony of the witnesses presented at the hearing. In resolving the question of
the individual’s eligibility for access authorization, I have been guided by the applicable factors
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prescribed in 10 C.F.R. § 710.7(c)4 and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual should not be granted access authorization. The specific findings
that I make in support of this decision are discussed below.
Criterion L Regarding Criminal Conduct
The key issue under Criterion L is whether the individual has brought forward sufficient evidence
to demonstrate that he is reliable and trustworthy, and that he is no longer subject to pressure,
coercion, exploitation or duress. For the reasons set forth below, I find that the individual has not
provided sufficient information to resolve the Criterion L concerns at issue at this time.
During the hearing, the individual readily acknowledged his long history of criminal conduct,
including his numerous charges and arrests. With respect to the charges and arrests for Domestic
Violence that occurred between 1994 and 1996, the individual testified that during this time period
he was in his teens and living with his mother. Tr. at 10. He explained that his mother was a
drinker and a gambler and that he started using drugs heavily at this time which created a very
stressful home environment. Id. The individual testified that the domestic violence primarily
involved arguments with his mother and stated that he never hit her. Id. He further testified that
the only times the arguments became physical were times when he attempted to restrain his mother.
Id. According to the individual, in 1995, he was 16 years old and his drug use had become “pretty
prolific” at this time. The individual testified that his social group consisted of drug users, and it
was at this time that he was arrested for Grand Larceny after selling his mother’s stereo to buy
cocaine. Id. at 11. The individual acknowledged that his criminal conduct continued through his
teen years, and that, in 1999, alcohol issues began to be prevalent as he was charged with his first
DWI offense. Id. at 14. He testified that he has paid and settled a March 2003 unresolved warrant
regarding his 2001 DUI and that he currently has a hearing set in February 2016 to resolve the
outcome of the case. Ex. D, Tr. at 19 and 20. In addition, the individual acknowledged that his
mother filed a Restraining Order against him after they got into an argument in July 2002 and that
it remained in place until May 2015 when his mother voluntarily removed it. Tr. at 24. According
to the individual, he had forgotten about the restraining order until he was questioned about it
during his background investigation. He testified that his relationship with his mother has
improved somewhat and noted that his mother lived with him and his wife for approximately two
months in 2014. Id. at 25.
The individual testified that he began changing his life in 2004, after he had received two DUIs
within a month and a half. Id. at 26. He stated that he “sought out stability, family, love and just
4 Those factors include the following: 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 at the time of the conduct, the voluntariness of his 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 material factors.
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good people” in his life and left the state where he was living to live with his brother. Id. at 27.
After this move, the individual found a good group of friends and eventually got married. Id. at
27 and 28. He testified that he changed everything about the way he lived, including his drinking
habits. Id. The individual now drinks occasionally, maybe with dinner and does not drink to
excess. Id. He testified that he now has a solid support system in place and believes that his
criminal conduct and substance abuse were intertwined. Id. at 29. He reiterated that he was in a
“bad situation” with his mother and the other type of people who were in his surroundings. Id.
According to the individual, since 2004, he has had no new criminal charges except his speeding
ticket in March 2013. Id. He acknowledged, however, that he has had a number of arrest warrants
issued when he failed to appear on various charges. Id. at 31. The individual expressed remorse
for his behavior and testified that he wishes he had been more diligent in following up with his
cases and cleaning up his past. Id. at 32. He testified that his lack of follow-up with court required
counseling ultimately led to his 15-day jail sentence in May 2015. Id. at 32. Finally, the individual
testified that he has made substantial changes in his life in light of his history of criminal conduct,
has learned from his mistakes and is an honest and trustworthy individual. Id. at 34. In addition,
he testified that he is more mature and responsible now; and understands the responsibilities and
obligations that come with holding a security clearance. Id.
Among the factors which could serve to mitigate the security concerns raised by the individual’s
pattern of criminal conduct 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 community involvement. Guideline J at ¶ 32 (a)-(d). None of these mitigating factors
apply in this case. First, during the hearing, the individual acknowledged and accepted full
responsibility for his criminal conduct. Second, although the individual did not receive any new
charges since 2004, except for a speeding ticket in 2013, the individual has been arrested on
warrants for Failure to Appear in 2013 and completed a 15-day jail sentence related to these
warrants in May 2015. Moreover, although the warrant has been resolved, the disposition of the
individual’s 2001 DUI charge still remains outstanding. Although a number of the individual’s
criminal charges are not recent, occurring when he was a teenager and in his 20s, and although
there is clear evidence of rehabilitation, this must be weighed against the individual’s long history
of criminal conduct. The individual has made significant positive changes in his life. However,
in light of the individual’s long pattern of criminal conduct and his unresolved criminal charge, I
do not believe the individual has yet demonstrated a sufficient period of rehabilitation to convince
me of his sound judgment regarding the safeguarding of classified information. Therefore, I
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cannot find that the individual has resolved the security concerns arising from his past criminal
conduct.
VI. Conclusion
I find that there are valid security concerns that remain regarding Criterion L. I therefore conclude
that the individual has not demonstrated 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 individual’s request for 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.
Kimberly Jenkins-Chapman
Administrative Judge
Officer of Hearings and Appeals
Date: March 11, 2016