PSH-17-0039

*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: May 31, 2017 ) Case No.: PSH-17-0039
)
_________________________________________ )
Issued: August 8, 2017
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (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 “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 Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information, The White House
(December 29, 2005) (Adjudicative Guidelines), I have determined that the individual’s access
authorization should be restored.
I. Background
The individual is employed by a DOE contractor and has held a security clearance since 2003. In
January 2016, he was arrested and charged with Aggravated Driving While Intoxicated (DWI).
The Local Security Office (LSO) conducted a Personnel Security Interview (PSI) in June 2016,
during which the individual described the circumstances that led to the January arrest. Unable to
resolve the security concerns raised by that arrest, the LSO referred the individual to a DOE
consultant psychologist for an evaluation. The DOE psychologist conducted the evaluation in
September 2016 and delivered a report containing his findings to the LSO in October 2016. In that
report, the DOE psychologist wrote that, in his opinion, the individual did not currently meet the
criteria for any alcohol-related diagnosis. He did find, however, that the individual had not been
candid about his current alcohol consumption; although he had asserted that he had abstained from
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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alcohol since his January 2016 arrest, a laboratory test conducted in September 2016 indicated that
he had consumed alcohol within the previous 21 to 28 days.
On April 27, 2017, the LSO sent a letter (Notification Letter) to the individual advising him that it
had reliable information that created a substantial doubt regarding his eligibility to hold a security
clearance. In the attachment to the Notification Letter, the LSO explained that the derogatory
information fell within the purview of Guidelines E and J of the Adjudicative Guidelines.
Upon receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations to request an administrative review hearing, and I was appointed the Administrative
Judge in the case. At the hearing, the LSO presented the testimony of the DOE psychologist, and
the individual presented the testimony of six witnesses and testified on his own behalf. In addition
to the testimonial evidence, the LSO tendered 15 numbered exhibits into the record (Exhibits 1-
15), and the individual submitted six exhibits (Exhibits A-F) into the record. The exhibits will be
cited in this Decision as “Ex.” followed by the appropriate numeric or letter designation. The
hearing transcript will be cited as “Tr.” followed by the relevant page number.
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 denials”); 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 restoring
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 evidence may be admitted. 10 C.F.R.
§ 710.26(h). An individual is thus afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
B. Basis for the 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
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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 eligibility in favor of
the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited two bases for administrative review of the individual’s request
for access authorization, Guidelines E and J. Guideline E addresses “[c]onduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations” as this “can raise questions about an individual’s reliability, trustworthiness, and
ability to protect classified information.” Guideline E at ¶ 15. Among the conditions set forth in
that guideline that could raise a disqualifying security concern is “deliberately providing false or
misleading information concerning relevant facts to an . . . investigator, security official, [or]
competent medical authority . . .” Id. at ¶ 16(b). As a basis for invoking Guideline E, the
Notification Letter cites the DOE psychologist’s conclusion that the individual’s claim of being
abstinent was not supported by the September 2016 laboratory results, which established that he
had consumed alcohol within the previous 21 to 28 days. Ex. 1 at 1.
The LSO’s second basis for its security concern relates to the individual’s history of criminal
conduct. Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply
with laws, rules, and regulations. Guideline J at ¶ 30. In support of its security concern under
Guideline J, the LSO relied on the individual’s January 2016 arrest for Aggravated DWI and a
series of nine arrests and citations issued between 1996 and 2002, including two arrests for DWI.
Ex. 1 at 1-2. These allegations adequately support the invocation of Guidelines E and J, and they
raise serious security concerns.
IV. Findings of Fact
A. Guideline E
The individual has not challenged the accuracy of the allegations contained within the Notification
Letter regarding his 2016 DWI arrest and his evaluation by the DOE psychologist. At the hearing,
however, he explained his actions and his general nature and reputation for honesty and reliability
through his testimony and that of others. The individual testified that he told the DOE psychologist
he had consumed no alcohol since his DWI arrest nine months earlier, because he was “so worried
about losing everything [he] had worked so hard for.” Tr. at 80. He knew immediately afterward
he had made a “stupid decision.” Id. at 79. He had in fact consumed three beers at a fundraiser for
his child’s basketball team eleven days before his evaluation and testing. Id. at 30, 92. His wife
testified that he called her as soon as he left the evaluation and told her that he had lied to the DOE
psychologist. Id. at 13. His supervisor at the time of the evaluation testified that the individual
reported his misrepresentation to him the next day, explaining that he “was scared.” Id. at 67.
According to the counselor who had treated him after his 2016 DWI arrest, the individual also
called her, probably in September 2016, to tell her about the lie. Id. at 37. In a later session with
her, she recalled the individual reporting that “he just had a flash of different thoughts in his head,
and he was scared, and he made a really stupid decision . . . and he beat himself up about it;” in
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her opinion, he experienced remorse and guilt about what had happened. Id. at 38. The individual
further testified that he had spoken to his brother and to his co-workers about his behavior. Id.
at 82.
Several witnesses testified about the individual’s general nature for candor. His wife stated that
she can always trust her husband to tell her the truth, because he “expresses all his emotions, and
admits everything to me, and he tells me everything he’s thinking and going through and what he
feels.” Id. at 14. As an example of his truthfulness and honesty, she related an incident in which
he returned to a store because he realized that the cashier failed to charge for the bulky items at
the bottom of the shopping cart. Id. at 17. His current supervisor praised the individual’s
forthcoming nature, describing his behavior during his interview. Id. at 49. A colleague vouched
for the broad-based respect that the individual has earned in his professional work. Id. at 58-59.
His former supervisor of 14 years stated that the individual has always been honest and trustworthy
in their interactions. Id. at 66. A lifelong friend spoke about trusting the individual, not only as a
friend, but as a coach and mentor to his daughter. Id. at 75. His counselor stated that the individual
has always been open, candid, and truthful in the course of his treatment program with her. Id.
at 38. Moreover, the DOE psychologist, while noting the individual’s misrepresentation about
abstaining from alcohol, concluded in his evaluative report that the falsification did “not appear to
be part of a more generalized dishonesty.” Ex. 4 at 10. At the hearing, the DOE psychologist
testified that his sense at the evaluation was that the individual was honest, and that he was not
accustomed to lying. Tr. at 26, 30, 32.
B. Guideline J
At the hearing, the individual addressed his numerous arrests and citations between the ages of 18
and 24. He offered no excuses for his criminal activity. He explained that he was in his “dumb and
foolish years” and “screwed up.” Id. at 84. He stated that his life now revolves around his family—
school, basketball, and church—and he no longer has time for socializing with others. Id. at 84-
85. His counselor testified about what she had learned from him in their sessions: that he was
young at the time, and wanted to be cool and fit in with his friends. She then stated that the
individual followed a pattern of behavior common of people in their 20s, particularly men, in that
he started to settle down, got married, and became a responsible adult. Id. at 39. She expressed no
concern about his past in light of the life he currently leads, which consists of work, home, working
out, children, and coaching basketball. Id. at 39, 41.2
Testimony at the hearing provided details of the events that led to the individual’s January 2016
DWI arrest. His wife explained that she had taken their children to nearby city to watch their son’s
basketball game. Her husband planned to drive separately and meet them there. A friend of his
arrived at their house and her husband drank with him before he set off to meet the family. Later,
after leaving the game, the individual was arrested. Id. at 15. The individual testified that he had
misjudged the situation: he had eaten while drinking the beers, and thought he was able to drive.
He failed the field sobriety tests when he was pulled over. Id. at 83.
2 I note that the LSO’s enumeration of the individual’s criminal history from 1996 to 2002 may be overstated. In his
evaluative report, the DOE psychologist wrote that he was inclined to believe that the two DWI arrests listed in the
Notification Letter for 2000 and 2001 were in fact a single incident. Ex. 4 at 5.
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V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the individual 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 granting 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
The LSO’s Guideline E security concern arises from the individual’s statement to the DOE
psychologist that he had abstained from alcohol since his January 2016 arrest, and a blood test that
provided strong evidence that he had in fact consumed alcohol within the preceding 21 to 28 days.3
At the hearing, the individual described his decision to claim abstinence falsely as an act of
desperation, committed because he was afraid that he would lose “everything [he] had worked so
hard for.” He acknowledged his misrepresentation within the first day after committing it, to his
wife, his supervisor, and a number of others, and to his counselor shortly thereafter. All of those
admissions took place before he learned that a laboratory test had established that he had in fact
consumed alcohol during the period of his claimed abstinence. In addition, at the hearing, the
individual took the opportunity to apologize to the DOE psychologist for having misrepresented
his alcohol use during the evaluation. Tr. at 30.
One condition stated in the Adjudicative Guidelines for mitigating a Guideline E concern is
“prompt, good-faith efforts to correct the . . . falsification before being confronted with the facts.”
Guideline E at ¶ 17(a). I acknowledge that the individual felt remorseful about his decision to
misstate his abstinence to the DOE psychologist almost immediately after doing so, and revealed
his falsification to several persons. I also recognize, however, that he did not reveal that
falsification either to the LSO or to the DOE psychologist. Consequently, while I cannot conclude
that the individual’s behavior following his falsification entirely resolves the LSO’s concerns for
his honesty, it is a factor to be considered in an overall, whole-person evaluation of his eligibility
to hold a security clearance. In a similar vein, I also consider the fact that the individual was under
no obligation to be abstinent at the time of his evaluation. Tr. at 90-91. Therefore, the individual
could have told the DOE psychologist the truth about having consumed three beers eleven days
before their meeting at little risk to his evaluation. Because he decided to conceal that fact, it is my
opinion that he panicked at the questioning and presented himself in a falsely positive light.
3 The record indicates that the individual similarly misrepresented the truth during a 2006 PSI when he told the
interviewer that he had been abstinent since 2003. I note that the LSO did not raise this incident as a concern under
Guideline E and, though the DOE psychologist acknowledged it in his evaluative report, he did not flag it as a matter
of concern to him. Ex. 4 at 3. Neither the LSO nor the DOE psychologist raised a concern based on a pattern of
misrepresentation; in fact, the DOE psychologist found no generalized dishonesty, despite his awareness of both the
2006 and 2016 lies. I will therefore address only that stated concern, as described above.
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Other mitigating conditions weigh more clearly in the individual’s favor. Although the
falsification was fairly recent, it appears to be an isolated event, in that the individual has a
reputation for reliability and honesty, and it is unlikely to recur. Guideline E at ¶ 17(c). In addition,
the individual has acknowledged the behavior and obtained counseling to address that behavior,
as he continues to see his counselor on an ad hoc basis, even though he long ago completed the
alcohol education program for which he initially saw her. Guideline E at ¶ 17(d). Given the
consistent nature of the evidence and the testimony regarding his reputation for honesty and
reliability, his acknowledgment of his behavior, and his demonstration of remorse, I find that the
individual has adequately addressed the LSO’s concerns about his honesty and reliability that were
raised by his misrepresentation of his abstinence to the DOE psychologist. Therefore, I conclude
that the security concern raised under Guideline E has been resolved.
B. Guideline J
The criminal conduct that the LSO identified in the Notification Letter falls into two categories: a
series of arrests and citations from 1996 to 2002, and a single arrest for DWI in 2016, separated
by a gap of nearly 14 years. With respect to the series of arrests and citations from 1996 to 2002,
the individual has explained that the cluster of criminal conduct occurred when he was young and
trying to be accepted by his peers. The record reflects that he has matured into a different person,
a responsible adult who no longer routinely violates laws but rather devotes himself to his family,
his church, and his community. His counselor testified that the individual’s path toward adulthood
is by no means uncommon. In light of the record produced in this proceeding, I find that two of
the mitigating conditions set forth in the Adjudicative Guidelines apply here: 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 case doubt on the individual’s reliability, trustworthiness,
or good judgment (Guideline J at ¶ 32(a)); and the individual was pressured or coerced into
committing the acts and those pressures are no longer present in his life (Guideline J at ¶ 32(b)).
Accordingly, I conclude that the security concerns raised by the individual’s criminal conduct from
1996 to 2002 have been resolved.
The remaining criminal event, the January 2016 DWI arrest, is a more serious matter, particularly
in light of the recency of the conduct. Nevertheless, it stands alone as the only criminal activity
between May 2002 and the date of the hearing, over 15 years later. I find that it resulted from an
error in judgment, a belief that he was capable of driving after drinking because he had eaten as
well, rather than from a deliberate flouting of state law. The individual testified that he is
committed to preventing its recurrence, stating that “If I ever drink again, . . . I will never, ever,
ever get behind the wheel.” Tr. at 98. The credibility of this assertion is enhanced by the
individual’s statement that the 18 months since the DWI arrest have been “rough.” Id. Applying
the most applicable mitigating factor in Guideline J, I find that there has been no new criminal
conduct since the arrest; that he has expressed remorse over the incident, according to his
counselor; that he continues to maintain a superior employment record, according to his
supervisors and colleague; and that he is active in constructive community endeavors, including
his church and his coaching of youth basketball. Guideline J at ¶ 32(d). In addition, he completed
an alcohol education program with his counselor, which adds to the likelihood that future DWI
behavior will not recur. I have therefore determined that the individual has resolved the security
concern raised by his recent DWI arrest.
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VI. Conclusion
Upon consideration of the entire record in this case, I find that there was evidence that raised
concerns regarding the individual’s eligibility for a security clearance under Guidelines E and J of
the Part 710 regulations. I also find, however, that the individual has presented sufficient
information to fully resolve those concerns. Therefore, I conclude that restoring the individual’s
DOE access authorization to the individual “will not endanger the common defense and security
and is clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that
the DOE should restore the individual’s access authorization.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: August 8, 2017