PSH-17-0007

*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 2, 2017 ) Case No.: PSH-17-0007
)
_________________________________________ )
Issued: May 16, 2017
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Administrative Judge Decision
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Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXX (“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, “General Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.”1 As fully discussed below, I conclude that the
Individual’s access authorization should be restored.
I. Background
The Individual is employed by a DOE contractor in a position that requires him to hold a DOE
security clearance. In October 2014, the Individual was arrested for Aggravated Menacing and
Using Weapons While Intoxicated, which resulted in the Local Security Office (LSO) conducting
a personnel security interview (PSI) with him in December 2014. On October 20, 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.
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
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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Judge. At a hearing convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), I took testimony
from the Individual and four witnesses. See Transcript of Hearing, Case No. PSH-17-0007 (Tr.).
The DOE presented 14 exhibits marked as DOE exhibits (DOE Ex.) 1 through 14; the Individual
submitted six exhibits marked Individual’s Exhibits (Ind. Ex.) A through F.
II. Regulatory Standard
The procedures 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”).
III. The Notification Letter and the Security Concerns at Issue
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. That information pertains to Guidelines E and J of the Revised Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information, The White House (December 29,
2005) (Adjudicative Guidelines or Guidelines).
Under Guideline E, the LSO alleges that the Individual has engaged in conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations. Such conduct can raise questions about an individual’s reliability, trustworthiness, and
ability to protect classified information. Among those conditions set forth in the Guidelines that
could raise a disqualifying security concern is “personal conduct or concealment of information
about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress.”
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Guideline E at ¶ 16 (e). As support for its security concerns under Guidelines E, the LSO cites the
Individual’s arrest record and the involvement of alcohol in his most recent arrest.
Under Guideline J, the LSO alleges that the Individual has engaged in a history or pattern of
criminal activity, which creates a doubt about his judgment, reliability, and trustworthiness.
Among the conditions set forth in the Guidelines that could raise a disqualifying security concern
are “allegations or admissions of criminal conduct, regardless of whether the person was formally
charged” or “a single serious crime or multiple lesser offense.” Guideline J at ¶ 31 (a) and (c). As
support for its security concerns under Guidelines J, the LSO cites the Individual’s three arrests
and two guilty pleas.
I find that there is derogatory information in the possession of the DOE, sufficient to raise serious
security concerns under Guidelines E and J.
IV. Hearing Testimony and Evidence
The Individual does not dispute his arrest record and, during the hearing, he testified about the
circumstances leading to these arrests.
In January 1997, the Individual was arrested for Domestic Violence after an incident involving his
now ex-wife. DOE Ex. 4 at ¶ 17. During the hearing, the Individual testified that after 20 years, he
does not exactly remember what happened, but stated that his ex-wife attempted to prevent him
from leaving her father’s house by scratching, slapping, and kicking him in the shins. Tr. at 95.
The Individual stated that, in response, he pushed her backwards into a chair. Id. He testified that
he does not remember if he actually slapped her, but during his December 2014 PSI, he stated that
he did. Id; see also DOE Ex. 9 at 34. When the police arrived, they arrested both the Individual
and his ex-wife for Domestic Violence. Tr. at 96. The Individual stated that he did not believe any
alcohol he had that night contributed to the incident itself. Tr. at 97. The Individual’s current wife
of 19 years testified during the hearing that she was aware of his previous domestic violence arrest
and that he has never mistreated her or their five children. Tr. at 16-18.
In September 1998, the Individual was arrested for Assault and Disorderly Conduct. DOE Ex. 4 at
¶ 16. He later pled guilty to the Disorderly Conduct charge and the court dismissed the Assault
charge. Id. During his December 2014 PSI, the Individual stated that he was attempting to break
up a fight between his son and another boy, when a police officer restrained and arrested him. DOE
Ex. 9 at 33. At the hearing, the Individual testified that he was charged with Assault because the
other boy involved reported to the police that the Individual kicked him in the face, which the
Individual denies. Tr. at 24-25. The police later dropped the Assault charge. Id. Additionally, the
Individual testified that the police charged him with Disorderly Conduct for not complying the
first time the officer asked him to step aside during the fight between the two boys. Tr. at 25. The
Individual stated that he pled guilty to the Disorderly Conduct charge in order to protect his son.
Tr. at 23. The Individual also submitted a letter from the attorney who represented him at this time,
confirming that the Individual pled guilty so his son would not face any charges. Ind. Ex. D.
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In October 2014, the Individual was arrested for Aggravated Menacing and Using Weapons While
Intoxicated. DOE Ex. 4. During his December 2014 PSI, the Individual stated that he went to a
motorcycle event with his cousin and consumed approximately five to six (10-12 ounce) cups of
beer. DOE Ex. 9 at 5. During the event, the Individual made a “squeezing motion” towards a
woman’s butt, which led to a confrontation with a man who knew the woman. Id. at 6. At some
point during the confrontation, the Individual raised his shirt up to reveal his firearm. Id. The
Individual then stated that as he was leaving the event, the man with whom he got into the
confrontation approached the police and told them the Individual had “pulled a gun” on him. Id.
at 7. The Individual maintains that he did not pull out his gun, only showed it to the man. Id. The
Individual admitted to the police that he drank during the event, but refused to submit to an optional
breathalyzer test. Id. at 9.
During the hearing, the Individual testified that both he and his wife applied for concealed weapon
permits for protection in 2013 after his wife bought a convenience store. Tr. at 77. He stated that
he typically carries his weapon when he is helping her at the convenience store on the weekends.
Id. On the day in question, the Individual was headed to her store, carrying his weapon, when his
cousin invited him to the motorcycle event. Id. He stated he was unaware that he would be drinking
that day, but after the race, he was offered beers, which he drank. Tr. at 85. During the hearing,
there was some confusion as to how much the Individual actually drank during the event, with the
Individual stating he was just guessing when he said he had five to six, 10 to 12 ounce beers during
his December 2014 PSI. Tr. at 81. He testified that during the event he did not remember
specifically thinking, “Oh, I’ve got my gun, I better take that back to the car.” Tr. at 84. The
Individual agreed that drinking probably caused him to be more “jokeative,” leading to him making
the squeezing motion towards the woman and then joking about it with a nearby man. Tr. at 91.The
Individual also testified that he did not refuse the breathalyzer test because he was intoxicated, but
rather because the police officer told him it was not required and that he would be charged
regardless. Tr. at 70. He further stated that he pled guilty to the reduced charge of Disorderly
Conduct because he believed that he had been disorderly by making the mistake of “having a drink
when he shouldn’t have” (while carrying his weapon). Tr. at 71. The Individual’s first-line
supervisor at the time of his arrest also testified during the hearing that the Individual reported his
arrest to him his first day back at work after the incident and immediately notified the appropriate
security office. Tr. at 63.
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)2 and the Adjudicative Guidelines. After due deliberation, I have
2 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
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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.
A. Guideline E
As an initial matter, I find that there is sufficient evidence in the record to support the LSO’s claims
that the Individual’s arrest record and the involvement of alcohol in some of these incidents raise
concerns under Guidelines E. The record shows that the Individual admitted to consuming alcohol
prior to at least two of the incidents that led to his arrest.
The Adjudicative Guidelines provide a number of potential conditions, which can mitigate security
concerns under Guideline E, including that “…so much time has passed...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). In this case, the
Individual’s two previous arrests are almost 20 years old. Additionally, both situations, which led
to the arrests, were fairly unique involving an argument with his ex-wife and an incident where he
was attempting to protect his teenage son. The facts that the Individual has been remarried to a
different woman for 19 years with no alleged domestic violence incidents and that his son is now
an adult indicate to me that these circumstances are unlikely to recur. Therefore, the Individual has
sufficiently mitigated the security concerns of the LSO relating to his 1997 and 1998 arrests,
pursuant to Adjudicative Guidelines ¶ 17 (c).
With regard to all three arrest incidents, another mitigating factor is that the individual “has
acknowledged the behavior and obtained counseling to change the behavior….” Adjudicative
Guidelines ¶ 17 (d). During the hearing, the Individual acknowledged his behavior in all the
incidents that led to his arrest. The Individual also acknowledged the role alcohol may have played
in his most recent 2014 arrest at the motorcycle event. Additionally, as part of the sentence for his
reduced Disorderly Conduct charge, the Individual completed a comprehensive alcohol
assessment which found that he did not meet the criteria for treatment. Ind. Ex. E at 4. The
Individual has completed his probation for this offense and received back his concealed weapon
permit. Id. at 5-6. Considering these facts, I find that the Individual has resolved the security
concerns of the LSO pursuant to Adjudicative Guidelines ¶ 17 (d).
B. Guideline J
With respect to Guideline J, the LSO cites the Individual’s most recent arrest for Aggravated
Menacing and Using Weapons While Intoxicated, and his two previous arrests for Domestic
Violence, Assault, and Disorderly Conduct. The Individual does not deny these arrests; therefore
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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I find that there is sufficient evidence in the record to support the concerns raised by the LSO under
Guideline J.
Similarly to Guideline E, the Individual has resolved this security concern under Guideline J due
to the fact that “so much time has elapsed since the criminal behavior happened, or it happened
under such unusual circumstances that it is unlikely to recur or does not cast doubt on the
individual’s reliability, trustworthiness, or good judgment.” Adjudicative Guidelines ¶ 32 (a).
There is also no indication that the Individual’s criminal history demonstrates a pattern of behavior
given the uniqueness of each incident and the lapse of time between the first two arrests and the
most recent arrest. Additionally, the Individual has resolved the concerns because “there is
evidence of successful rehabilitation; including but not limited to the passage of time without
recurrence of criminal activity.” Adjudicative Guidelines ¶ 32 (d). The record shows that it has
been almost 20 years since the Individual’s first two arrests. Furthermore, the Individual’s most
recent arrest was in 2014, and the record reflects that he has not been involved in any other criminal
conduct since then. The record also indicates that the Individual has completed all requirements of
his sentence for his last offense and is no longer on probation. Ind. Ex. E.
Based on the foregoing, I find that the Individual has resolved the concerns raised by the LSO
pursuant to Adjudicative Guideline J.
V. 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 Guidelines E and J. After
considering all of 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 with those Guidelines. 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: May 16, 2017