PSH-16-0064

*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 11, 2016 ) Case No.: PSH-16-0064
)
_________________________________________ )
Issued: September 28, 2016
____________________________
Administrative Judge Decision
____________________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX XXXXXX (“the Individual”) for access
authorization under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710,
Subpart A, 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’s access authorization should be restored at this time.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. The Local Security Office (LSO) received potentially derogatory information
regarding the Individual’s arrest for Driving Under the Influence (DUI). In order to address those
concerns, the LSO summoned the Individual for an interview with a personal security specialist in
October 2015.
On June 6, 2016, the LSO sent a letter (Notification Letter) to the Individual advising him that it
possessed reliable information that created a substantial doubt regarding his eligibility to hold a
security clearance. See 10 C.F.R. § 710.21. In the Notification Letter, the LSO explained that the
derogatory information fell within the purview of two potentially disqualifying criteria set forth in
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.
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the security regulations at 10 C.F.R. § 710.8(h) and (l) (hereinafter referred to as Criterion H and
Criterion L).2
After receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request an administrative review hearing. The LSO forwarded this request to the
Office of Hearings and Appeals (OHA), and the OHA Director appointed me as the Administrative
Judge. At a hearing convened pursuant to § 10 C.F.R. § 710.25 (e) and (g), the DOE introduced
nine exhibits (DOE Exs. 1-9) into the record and presented the testimony of a DOE psychologist.
The Individual presented his own testimony, the testimony of two co-workers, and his wife. The
Individual also submitted two exhibits (Ind. Exs. A-B). See Transcript of Hearing, Case No.
PSH-16-0064 (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 and 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 [or her] 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). This standard implies
that there is a presumption against granting or restoring a security clearance. 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); see also Dep’t of the Navy v.
Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national interest” standard indicates
“that security determinations should err, if they must, on the side of denials”).
2 Criterion H refers to information indicating that an individual has “[a]n illness or mental condition of a nature which,
in the opinion of a psychiatrist or licensed clinical psychologist, causes or may cause, a significant defect in judgment
or reliability.” 10 C.F.R. § 710.8(h). Criterion L refers to information indicating that the Individual has “engaged 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.
Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial irresponsibility,
conflicting allegiances, or violation of any commitment or promise upon which DOE previously relied to favorably
resolve an issue of access authorization eligibility.” 10 C.F.R. § 710.8(l).
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III. Notification Letter and Associated Security Concerns
As previously noted, the LSO cites Criteria H and L as the bases for suspending the Individual’s
security clearance. The LSO cites as Criterion H derogatory information an evaluative report from
the DOE psychologist opining that the Individual suffers from a cognitively distorted perception
which comprises a mental condition which causes, or may cause, a significant defect in judgment
or reliability. DOE Ex. 4 at 8; DOE Ex. 1. Certain emotional, mental, and personality conditions
can impair judgment, reliability and trustworthiness. Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19,
2005), Guideline I, at ¶ 27 (Adjudicative Guidelines). With regard to Criterion L, the LSO cites
the Individual’s admission that he consumed alcohol despite knowing he was restricted from
consuming alcohol due to a DUI release agreement (DUI Release). DOE Ex. 1; see DOE Ex. 6;
DOE Ex. 4 at 3-6; DOE Ex. 9 at 25-26. 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. Adjudicative
Guidelines, Guideline E, at ¶ 15.
IV. Hearing Testimony and Evidence
The Individual was arrested for DUI in August 2015. DOE Ex. 1 at 3; DOE Ex. 6. Immediately
after his DUI, the Individual notified his supervisor. Tr. at 10. The Individual’s supervisor and
co-worker testified that the Individual is an extremely trustworthy and honest. Tr. at 12, 19. The
supervisor testified that he has never seen the Individual deceitful and that the Individual is a true
professional and one of the most respected professionals at their company. Tr. at 13. The
Individual’s co-worker stated that the Individual’s “word is his bond.” Tr. at 20. He continued
that the Individual is a trusted colleague. Tr. at 22. The co-worker concluded that the Individual
“does not bend the rules.” Tr. at 25-26.
The Individual’s wife stated that the Individual is “a man of excellence” and integrity. Tr. at 41.
She concluded that trust is very important to the Individual. Tr. at 41. The Individual stated that
he tried to find “wiggle room” in the DUI Release and he was in denial. Tr. at 46, 48. He finished
that he stopped consuming alcohol immediately after his interview with the DOE psychologist.
Tr. at 59.
In her report, the DOE psychologist opined that the Individual’s
failure to abstain from alcohol as required by his Release and Bond Agreement and
his DUI Compliance Checklist; his deception regarding these requirements; and his
rationalization that he will not be controlled, indicate a cognitively distorted
perception which comprises a mental condition which causes, or may cause, a
significant defect in judgment or reliability.
DOE Ex. 4 at 8. At the hearing, the DOE psychologist testified that the Individual’s demeanor
and attitude were different than when they met for the evaluation. Tr. at 65. She stated that he has
“come to an understanding . . . about what he was doing as part of the denial [of his violation of
the DUI release agreement] – I said cognitive distortions – in playing with the truth in trying to
perceive things in a certain way and then represent them that way.” Tr. at 65-66. The DOE
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psychologist testified that the behavioral changes she saw at the hearing sufficiently mitigated the
mental condition she diagnosed at the initial evaluation. Tr. at 67.
V. Administrative Judge’s Findings and Analysis
I have thoroughly considered the record of 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
prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the Individual’s access authorization should be restored. I find that restoring the
Individual’s DOE security clearance will not endanger the common defense and security and is
clearly consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I
make in support of this decision are discussed below.
As an initial matter, I find that the LSO has properly raised security concerns under Criteria H and
L, regarding the Individual’s diagnosis by the DOE psychologist and his failure to abstain from
alcohol after his DUI. A diagnosis by a duly qualified medical professional that an individual
suffers from a medical condition that can impair judgment, reliability or trustworthiness, is
specifically mentioned in the Adjudicative Guidelines as a condition that could raise a security
concern. Adjudicative Guidelines, ¶ 27(b). Further, deliberately providing false or misleading
information concerning relevant facts to an employer, investigator, security official, competent
medical authority, or other official government representative is mentioned in the Adjudicative
Guidelines as a condition that could raise a security concern. Adjudicative Guidelines, ¶ 16 (b).
In considering whether the Individual has resolved the properly raised security concerns, I must
look to the Adjudicative Guidelines in evaluating the evidence before me. The relevant paragraph
lists conditions that could mitigate the Criterion H security concern, including: “recent opinion by
a duly qualified mental health professional employed by, or acceptable to and approved by the
U.S. Government that an individual’s previous condition is under control or in remission, and has
a low probability of recurrence or exacerbation.” Adjudicative Guidelines, ¶ 29 (c). The relevant
paragraph lists conditions that could mitigate the Criterion L security concern, including: “the
offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened
under such unique circumstances that it is unlikely to recur and does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment.” Adjudicative Guidelines, ¶ 17 (c).
Given the above factors, I find that the Individual has resolved the security concerns raised by the
LSO. With respect to the Criterion H concern, the DOE psychologist opined at the hearing that
the Individual no longer suffers from the mental condition which led her to her initial diagnosis.
The DOE psychologist based her testimony on the Individual’s demeanor at the hearing. The
Individual took responsibility for consuming alcohol after his DUI, even though his release
agreement stated he must be abstinent. He testified that he was in denial and trying to find “wiggle
room” in the agreement. The Individual stated that he misled his co-worker into believing that he
misunderstood the release agreement. The DOE psychologist was very impressed that the
Individual was finally taking responsibility for his behavior and no longer in denial about the
requirement that he be abstinent. “What was persuasive was [the Individual] saying it wasn’t a
misunderstanding – like [his co-worker] said . . . and [the Individual] took responsibility for saying
that that’s because that’s what I was feeding [his co-worker], that’s the perception I was trying to
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give him.” She concluded that her clinical perception of the Individual was much different from
when she saw him for the initial evaluation. The DOE psychologist’s testimony satisfies ¶ 29 (c)
above.
With respect to the Criterion L concern, the Individual’s witnesses testified that he is an
exceptionally honest person. His witnesses have each known him for well over 15 years, with his
supervisor having known him for 30 years. Tr. at 10, 17, 19, 32, 41. The Individual testified that
he was “trying to find wiggle room, loopholes in the verbiage that said, ‘[w]ell, that doesn’t apply
to me.’” Tr. at 46. The Individual’s co-worker testified that he believed the Individual
misunderstood the requirement that he not consume alcohol. Tr. at 24. During his testimony, the
Individual stated that he did not misunderstand the requirement but rather he was misleading his
co-worker about his requirement. Tr. at 57. Taking all the testimony together, including the DOE
psychologist’s opinion that the Individual no longer suffers from a mental condition and his
admitting that he misled his co-worker about the requirement to be abstinent, I find that the
Individual has resolved the concern raised by the Criterion L concern. The Individual’s behavior
was isolated and occurred under such unique circumstances that it is unlikely to recur and does not
cast doubt on the Individual’s years of reliability, trustworthiness, or good judgment. The
Individual’s witnesses compelling testimony satisfies ¶ 17 (c) above.
Based on the foregoing, I find that the Individual has resolved the security concerns raised by his
diagnosis of a mental condition and his failure to remain abstinent as required by his DUI Release.
VI. Conclusion
In the above analysis, I have found that there was derogatory information in the possession of the
DOE that was sufficient to raise serious security concerns under Criteria H and 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 brought forth sufficient evidence to resolve the security
concerns associated those criteria. I therefore find that restoring the Individual’s access
authorization will not endanger the common defense and is clearly consistent with the national
interest. Accordingly, I have determined that the Individual’s access authorization should be
restored. 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: September 28, 2016