PSH-17-0027

*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 )
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Filing Date: April 20, 2017 ) Case No.: PSH-17-0027
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Issued: August 10, 2017
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Administrative Judge Decision
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as “the
individual”) for 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 individual should not be
granted a security clearance at this time. 2
I. BACKGROUND
The following facts are undisputed. The individual is employed by a Department of Energy (DOE)
contractor, who requested a security clearance on his behalf. During the 2014 application process
for his current position, the individual was asked by the contractor to disclose his employment
history. He claimed to have worked at a hospital from June 2004 to September 2008, and at a child
1An 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 also be
referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website
located at http://www.oha.doe.gov.
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care center from September 2008 to May 2013. See DOE Exhibit (Ex.) 5. However, when the
contractor attempted to verify these dates, it learned that the individual worked at the hospital from
July 2002 to September 2005, and at the child care center from October 2010 to April 2013. Id.
When asked by his employer to explain these discrepancies, he maintained that he began working
at the child care center in 2008, but said that his employment was initially “under the table,” and
that he was unaware that he could not use the 2008 date as his start date in information that he
provided to his employer. The individual did not provide an explanation for the discrepancy as to
the end date of his employment with the hospital, nor did he disclose the fact that he had another
job between these two periods of employment. Id.
As part of the process of applying for a security clearance, the individual completed a
Questionnaire for National Security Positions (QNSP) in February 2015. On this QNSP, he
revealed that he was employed at a local airport parking facility from October 2005 until
September 2010, and that he was fired for stealing money from a cash register.
Because this information involved security concerns, the Local Security Office (LSO) summoned
the individual for an interview with a personnel security specialist in August 2016. During this
Personnel Security Interview (PSI), the individual described the manner in which he stole money
from his employer. He said that as a cashier, he would charge customers the full parking rate.
However, at the end of his shift, he would falsely represent that some of these customers used
coupons that were good for a discounted rate, and then he would pocket the difference between
what the customers actually paid and that discounted rate. DOE Ex. 3 at 15, 17-20. He engaged in
this practice from late 2008 or early 2009 until approximately September 2010. DOE Ex. 3 at 17,
22. During this period, he stole a total of $3,100 to $3,200, with his daily intake ranging from six
dollars or less to $70. Management learned of the individual’s actions when one day, at the end of
his shift, he forgot to remove money from the register, and the discrepancy was discovered by an
employee working the next shift. The individual was fired and his employer agreed not to have
him arrested if the individual made restitution, which he did. Id.at 19-23. During the hiring process,
he did not inform the contractor about this job or about the reason for his termination because he
was afraid that the contractor would not hire him if he did. Id. at 30-31.
After reviewing this interview and the individual’s personnel security file as a whole, the LSO
determined that derogatory information existed that cast into doubt the individual’s eligibility for
access authorization. It informed the individual of this determination in a letter that set forth the
DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter
as the Notification Letter. The Notification Letter also informed the individual that he was entitled
to a hearing before an Administrative Judge in order to resolve the substantial doubt concerning
his eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced five
exhibits into the record of this proceeding. The individual introduced six exhibits and presented
the testimony of his wife at the hearing, in addition to testifying himself.
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II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This 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).
Guideline E relates to personal conduct, and it provides that 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. Guideline J concerns criminal conduct, and it states that such activity also creates
doubt about a person’s judgment, reliability, and trustworthiness. As support for its invocation of
these Guidelines, the LSO cites the information set forth in the preceding section of this Decision.
These facts adequately support the invocation of Guidelines E and J, and they raise serious security
concerns. Deliberately providing false or misleading information concerning relevant facts to an
employer can raise security concerns under Guideline E, and may be disqualifying. Adjudicative
Guidelines, ¶ 16(e). Allegations or admissions of criminal conduct, regardless of whether the
person was formally charged, formally prosecuted, or convicted can raise security concerns under
Guideline J, and may be disqualifying. Adjudicative Guidelines, ¶ 31(c).
III. REGULATORY STANDARDS
The procedures for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictate 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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. 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).
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IV. FINDINGS OF FACT AND ANALYSIS
A. Mitigating Evidence
As previously indicated, the individual did not contest the facts supporting the DOE’s invocation
of Guidelines E and J. Instead, he attempted to demonstrate, through his own testimony and that
of his wife, that he is now an honest and trustworthy person who can be relied upon to adequately
protect classified information.
The individual testified that, several years before going to work at the parking facility, he was
involved in a relationship with a young woman who became pregnant. Believing that the child was
his, the individual continued, he and the woman began cohabitating. The couple broke up after the
individual allegedly discovered that the woman was having an affair. When he attempted to gain
custody of the child, he claimed, he took a paternity test in 2007 and was informed that he was not
the father. Nevertheless, during this period, he said, he incurred approximately $10,000 in debt as
he attempted to support the three of them on his eight-dollar-an-hour salary. Hearing Transcript
(Tr.) at 28-33.
The individual then testified about his employment with the parking facility and his termination
for stealing. His description of the method that he employed in taking the money and of the events
that led to his firing was essentially the same as the one that he provided during his PSI. He added,
though, that when asked if a particular employee had assisted him, he told his employer that he
acted alone. He also said that he borrowed money from his father to make restitution, and that he
has since paid off that debt. Tr. at 36-37.
The individual went on to discuss the inconsistencies in his dates of employment at the hospital
and the child care center. He said that he started doing “odd jobs” for the child care center, such
as cutting the grass, mopping the floors and repairing appliances, in 2008. He was not a salaried
employee at this time, but was instead working on a fee for services rendered basis. The individual
testified that he did not intend to mislead his employer about the dates of his employment at the
hospital and the child care center. He attributed the discrepancies to a poor memory with regard to
the hospital, and to a misunderstanding as to when his employment formally began at the child
care center. Tr. at 37-41.
After the individual filled out his QNSP, he said, he finally did disclose his employment at the
parking facility to the contractor, as well as the reason that he was fired from that job. The
individual testified that part of the reason that he did this was because he knew that it was wrong
to withhold this information during the hiring process. He also wanted to “come clean” with them
so that it wasn’t a secret that someone could hold over them in an attempt to get him to act in a
way that was contrary to the national security. Tr. at 43-44.
The individual testified that his finances were in order, and that if anyone offered him money in
return for compromising national security, he would report the incident to his employer’s security
officer. Tr. at 48, 54. He further stated that there have been significant changes in his life since his
employment at the parking facility. Specifically, he has gotten married, become the father of three
children, and graduated from a community college. Tr. at 52, 67; see also Individual’s Exhibits
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(Ind. Ex.) E and F. Finally, he indicated that he realizes that stealing from his employer and
misleading a subsequent employer were wrong, and that he regrets these actions. Tr. at 43, 65, 80;
see also Ind. Ex. A.
The individual’s wife testified that the individual was young and made a mistake when he stole
from his employer, and that he is now very honest, responsible and trustworthy. Tr. at 12-13. The
individual also submitted letters of recommendation from three current or past supervisors,
generally attesting to his honesty, trustworthiness, and skill as an employee. Ind. Ex. B, C and D.
B. Administrative Judge’s Decision
The evidence in this case establishes that the individual has made significant changes in his life
since his employment at, and theft from, the parking facility. He is now a husband and a father,
has graduated from a community college, and has apparently established a positive work record,
and there is no indication of any further illegal activity in the intervening seven years. This is some
evidence of rehabilitation. See Adjudicative Guidelines, ¶ 32(d). The individual has also taken
steps to reduce or eliminate vulnerability to exploitation or duress by revealing to the contractor
his employment at the parking facility and the reason for his termination. Id. at ¶ 17(e).
Despite this mitigating evidence, I find that significant security concerns remain regarding the
individual’s behavior and his honesty and trustworthiness. The individual engaged in a scheme to
defraud his employer of a total of over $3,000 in hundreds of transactions over a period of time of
well over a year. This evidences a degree of premeditation and willingness to commit crimes for
financial gain that ill-befits a security clearance holder. The individual pointed out, both during his
PSI and at the hearing, that he was in a substantial amount of debt at the time due to his attempts
to support his girlfriend and her child, and that this motivation to commit illegal acts for financial
gain no longer exists due to the higher amount of income from his current position. However, it
does not appear that the individual’s crimes were motivated by a desire to get out of debt, as most
of the proceeds from his illegal activity went to pay for a cruise for the individual and his girlfriend.
DOE Ex. 3 at 27, 29. The individual said that he used his student loans to repay his debts. Id. at
28.
He allegedly did make restitution for the stolen funds. Nevertheless, the mitigating value of this
factor is lessened by the fact that the individual did so to avoid having his actions reported to the
police. The individual’s age at the time that he stole the money is not a mitigating factor, as he was
23 years old. In spite of the mitigating factors discussed above, the nature of the individual’s
offenses, the number of fraudulent transactions, the period of time over which the transactions
occurred, and the degree of premeditation involved convince me that the chances of him acting in
a similar manner in the future are unacceptably high. Significant security concerns remain under
Guideline J.
I also harbor serious doubts about the individual’s honesty and trustworthiness. He argues that his
honesty with the DOE and his eventual provision of an accurate employment history to the
contractor are potentially mitigating conditions. See Adjudicative Guidelines, ¶17(a) (mitigating
factors include that the individual made prompt, good faith efforts to correct the omission or
concealment before being confronted with the facts). However, the individual was “confronted
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with the facts” in 2014 when the contractor informed him that it was unable to confirm the dates
that the individual provided regarding his previous employment, and asked the individual for an
explanation for the discrepancies between those dates and the dates that the contractor had
uncovered as a result of its investigation. In response to this query, the individual again did not
disclose his employment at the parking facility, but instead blamed a faulty memory and a
misunderstanding as to when his employment at the child care center formally began. See DOE
Ex. 5. The individual did disclose the omitted information to the DOE on his QNSP and during his
PSI in 2016, and to the contractor soon afterwards. However, I find little mitigation in the
individual’s honesty with the DOE since it was a requirement, and since failing to provide accurate
information would itself have raised serious security concerns. Furthermore, the individual did not
inform the contractor of his deception until two years after he was confronted with the discrepancy
in dates, and then only after being prompted to do so during the PSI. See DOE Ex. 3 at 34-35.
Accordingly, this potentially mitigating condition has not been adequately established.
Furthermore, I find that the individual intentionally continued to provide incomplete or misleading
information during the PSI and at the hearing. During the PSI, the individual was asked why he
had stolen money from the parking facility. He replied that he was trying to pay off debts incurred
as a result of him attempting to support himself, his girlfriend, and her child on a salary of eight
dollars per hour. DOE Ex. 3 at 21. However, when confronted with the fact that he had gone on a
cruise during the period of time in question, the individual admitted that most of the proceeds from
his illegal activity went to pay for the vacation and for “other things.” DOE Ex. 3 at 29.
At the hearing, the individual testified that he didn’t intend to mislead the contractor when he
provided incorrect dates of employment at the hospital and at the day care center. Instead, he
insisted that the incorrect dates were the result of a “communication misunderstanding” with
respect to the day care center, and of a faulty memory with respect to the hospital. Tr. at 39-41,
76.
I did not find this testimony to be credible. According to the individual, he misremembered his
dates of employment with the hospital and misunderstood what was asked of him concerning his
tenure with the child care center in a way that just happened to entirely account for the period of
time that he was employed at the parking facility. I find it particularly hard to believe that the three
year discrepancy between the year that the individual claimed to have left the hospital (2008) and
the year that his employment there actually ended (2005) was the result of a poor memory. Instead,
I believe that the individual was attempting to account for the period of time that he worked at the
parking facility so as to avoid any inquiry as to what he was actually doing during this period, and
as to why the parking facility fired him. The individual has failed to adequately address the security
concerns regarding his honesty and trustworthiness under Guideline E.
V. CONCLUSION
For the reasons set forth above, I find that significant security concerns remain under Guidelines
E and J. Consequently, I cannot conclude that granting the individual access authorization would
not endanger the common defense and would be clearly consistent with the national interest.
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Accordingly, I find that the DOE should not grant the individual a security clearance at this time.
Review of this decision by an Appeal Panel is available under the procedures set forth at 10 C.F.R.
§ 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: August 10, 2017