PSH-17-0061

*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: August 31, 2017 ) Case No.: PSH-17-0061
)
_________________________________________ )
Issued: January 11, 2018
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXX XXXXX XXXXX (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 access
authorization should be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires her to hold a DOE
security clearance. In March 2017, as part of a background investigation, the Local Security Office
(LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about
her sexual behavior and personal conduct.
In August 2017, the LSO sent a letter (Notification Letter) advising the individual that it possessed
reliable information that created substantial doubt regarding her eligibility to hold an access
authorization. In an attachment to the Notification Letter, the LSO explained that the derogatory
information fell within the purview of one or more security concerns under Guideline D (Sexual
Behavior) and Guideline E (Personal Conduct) of the National Security Adjudicative Guidelines
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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for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines).
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 presented her own testimony and that of four witnesses. The DOE
Counsel did not call any witnesses. Both the DOE and the individual submitted a number of
written exhibits (Ex.) prior to the hearing.
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 regulations require me, 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). 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 restoring
her 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 her 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.
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.
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III. The Notification Letter and the Security Concerns at Issue
As previously noted, there are various security concerns under Guideline D, Sexual Behavior, and
Guideline E, Personal Conduct. To support Guideline D, the LSO cites a 2016 Investigative Report
which revealed significant background information including information related to the
individual’s sexual behavior. The LSO also cites a March 2017 PSI in which the individual
admitted to voluntarily making a video of a sexual nature and sending inappropriate pictures to a
boyfriend. As for Guideline E, the LSO cites the individual’s pattern of risky sexual conduct as
well as a number of instances believed to represent a history and pattern of poor decision-making
regarding relationships. See Ex. 1.
I find that the information set forth above constitutes derogatory information that raises questions
about the individual’s behavior under both Guidelines D and E. First, with respect to Guideline
D, sexual behavior that involves a criminal offense, reflects lack of judgment or discretion, or may
subject the individual to undue influence or coercion, exploitation, or duress can raise questions
about an individual’s reliability, trustworthiness and ability to protect classified information. See
Guideline D. Second, with respect to Guideline E, which addresses conduct involving
questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations, this behavior can also raise questions of a similar nature. See Guideline E.
IV. Findings of Fact
On December 22, 2016, the LSO received an Investigative Report that concerned allegations of
Workplace Violence related to the individual. The report indicated that the individual and a
boyfriend moved in together on November 2, 2016, after dating for several months. It further
indicated that the relationship ended on November 12, 2016, and that both the individual and the
boyfriend filed Civil Protection Orders against the other. See Ex. 1 at 1. During the course of the
investigation, significant background information was revealed including information that the
individual’s boyfriend threatened to expose intimate video of the two of them. Id. In addition,
several violations of laboratory policy by the individual were found and documented, including
the individual’s use of her government Google account to conduct chats with the boyfriend
(another employee) that were sexual in nature. Also, the individual used her personal cell phone
to take a partially nude photo in the second floor restroom of her office building during work hours,
and sent the photo to the boyfriend. Id.
In a March 2017 PSI, the individual admitted that she voluntarily made a video revealing her and
her boyfriend being intimate. Id. According to the individual, she made the video because it
seemed important to her boyfriend at the time. She further stated that she never initiated making
the video, and that it made her feel uncomfortable. Id. The individual also admitted that she sent
inappropriate pictures to previous boyfriends via her phone. Id. She acknowledged that she was
naïve and trusting and did not consider the possibility that the boyfriends could use the pictures to
place her in a compromising position.
During the course of her PSI, the individual also revealed information showing a history and
pattern of poor decision-making regarding her relationships. Id. at 2. She admitted that she began
cohabitating with a boyfriend after dating only a few months. In this particular relationship, the
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individual stated that, after checking the boyfriend’s court records, she discovered various
complaints and charges including Assault and Attempted Strangulation. The individual admitted
that she has had issues with moving too fast in relationships and has had the tendency to be
“blinded by love.” Id. In another relationship with someone with a criminal record, the individual
admitted that she allowed this boyfriend to spank her kids because she was “stressed and
overwhelmed and just looking for a little protection from [her] ex-husband’s constant attacks.” Id.
at 3. In an October 2016 PSI, she acknowledged that she had a brief marriage with another
individual although she knew that he had a history of drug and alcohol abuse. 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
prescribed in 10 C.F.R. § 710.7(c)2 and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual’s access authorization should be restored. Based on the facts in this
record, 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 D: Sexual Behavior
During the hearing, the individual testified about her inappropriate behavior, her personal conduct,
and a history of poor judgment. She acknowledged that she has not used good judgment in entering
a number of previous relationships. Transcript of Hearing (Tr.) at 118-129. The individual testified
that with respect to the video she made with a previous boyfriend, she believed at the time that it
would be private and not distributed in any way. Id. at 129. She testified that the video is no
longer in existence, and does not believe that it can be used to manipulate her in any way. Id. at
130. The individual also acknowledged that she took a photo, with one breast exposed, on her
personal cell phone after work hours in an office bathroom. Id. at 132. She further acknowledged
during the hearing that she sent this photo to a boyfriend and believed at the time that it was a
private, discreet act between the two of them. Id. The individual admitted that she has had a
number of poor relationships, but testified that these were isolated incidences. Id. at 135. She
further testified that she has been involved in far more healthy, good relationships than poor
relationships. Id. During the hearing, the individual acknowledged that she did not use her best
judgment in using her Google account to chat with a boyfriend at work, but stated that she was not
aware that it was against her employer’s policy. Id. at 145.
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 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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The individual testified that she has taken a number of positive steps to address her decision-
making process as it relates to her personal relationships. Id. at 138. She stated that she realized
she needed to seek professional help in guiding her to “make better decisions, for self-
improvement, and … to have a happier live in general.” Id. The individual stated that she engaged
in counseling with the Employee Assistance Program (EAP) for about three months. Id. She
testified that the counseling sessions were productive and gave her tools and suggestions for
handling various situations, including her personal relationships. Id. at 139. According to the
individual, her counseling sessions revealed a great deal of past trauma in her life that needed to
be addressed. Id. at 140. She testified that she was referred to another counselor whom she met
with regularly from March through July 2017, to work on addressing the trauma directly. Id. at
141. The individual testified that she learned how her past trauma has affected her emotions and
how to separate those emotions from her past trauma. Id. She further testified that she had
stressors in her life causing anxiety which could have led to her making bad decisions. Id. at 146.
The individual stated that she learned the importance of fulfilling her own needs instead of looking
for outside sources to fulfill those needs. Id. Finally, the individual testified that since
participating in counseling, she feels calmer and her thinking is clearer. Id. at 147. She testified
that she now understands the inappropriateness of her behavior in the workplace, and does not
intend to engage in this behavior in the future. Id. at 175-176.
The individual presented the testimony of four witnesses, including her EAP counselor, a mental
health counselor, her current boyfriend and her manager. Her boyfriend testified that he has been
in a trusting relationship with the individual since December 30, 2016, over a year. Id. at 20. He
stated that the individual disclosed that she had some issues at work, but that he has found her to
be honest and trustworthy throughout their relationship. Id. at 22. According to the individual’s
boyfriend, the individual has never taken inappropriate photos or made inappropriate videos during
the course of their relationship. Id. at 25. He believes that the individual is not easily manipulated
and exercises good judgment. Id. at 28. The individual’s supervisor testified that she issued a
verbal warning to the individual on December 6, 2016, regarding her use of government equipment
to use Google chat with communications that are sexual in nature, and taking a partially nude photo
in the workplace and sending it to another employee. Id. at 89; Ex. A. The supervisor testified
that the individual was embarrassed and remorseful for her behavior and believes the individual’s
behavior was a one-time incident. Id. at 91. She testified that she considers the individual to be
reliable and trustworthy. Id. at 94.
The EAP counselor testified that she met with the individual for seven sessions from December
2016 through March 2016 after the individual reached out to her for assistance. Id. at 40. She
stated that the individual was overwhelmed with work and personal issues, and that she provided
cognitive behavior therapy techniques to assist her with coping with her issues. Id. at 41. The
EAP counselor testified that the individual’s counseling sessions were productive, noting that the
individual got better with identifying her “struggles.” Id. at 42. She believes that, after counseling,
the individual was armed to make better decisions in her relationships. Id. at 44. She further
testified that the individual is trustworthy and has good judgment. Id. at 45. The individual’s
second counselor, a certified mental health counselor, testified that he met with the individual
during the course of four months for 17 sessions, to help her work through the emotions of past
traumatic events in her life. Id. at 55. He testified that, based on the individual’s history, she
suffered from Post-traumatic Stress Disorder (PTSD) in the past. Id. at 69. He noted that the
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individual’s trauma issues pre-dated her work-related issues and believes these issues played a role
in some of the decisions she made in 2016. Id. at 59. The mental health counselor testified that he
and the individual discussed how to identify emotions and nurture the individual’s self. Id. at 73.
He believes the individual made progress during their sessions, and feels more peace and reduced
anxiety. Id. at 65. According to the mental health counselor, PTSD can undermine a person’s
confidence. He testified that as a person’s anxiety heightens, they are likely to make poor
decisions. Id. at 66. The mental health counselor believes that the individual now has the tools
needed to make better decisions, and believes that since participating in counseling, her symptoms
have reduced to the extent that she no longer currently meets the criteria for PTSD. Id. at 70.
The key issue under Guideline D is whether the individual brought forth sufficient evidence to
demonstrate that she is reliable, trustworthy, and no longer vulnerable to exploitation,
manipulation, or duress as a result of her conduct. Conduct involving questionable judgment can
raise questions about an individual’s reliability, trustworthiness and ability to protect classified
information. See Guideline D at ¶ 12. Under Guideline D, conditions that may mitigate security
concerns include “the sexual behavior happened so long ago, so infrequently, or under such
unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment” or “the behavior no longer serves as a basis
for coercion, exploitation, or duress.” Id. at ¶ 14(b), (c).
As stated earlier, the individual testified that she now understands the inappropriateness of her
behavior and will not engage in this behavior in the future. She further the testified that, as a result
of counseling, she now has the tools necessary to make better decisions and judgment calls. I
found the individual’s testimony to be credible with regard to the lessons she has learned from her
behavior. I am also persuaded by the testimony of both counselors, the individual’s EAP counselor
and her mental health counselor, that the individual’s past traumatic experiences likely influenced
her poor decision-making in her relationships and that she is now equipped to make better
decisions. In light of this testimony, I am convinced that the individual’s behavior with respect to
her inappropriate behavior in the workplace is unlikely to recur and does not cast doubt on her
current reliability, trustworthiness, or good judgment. I am also convinced that the individual has
been open and honest about her behavior, and thus her behavior no longer serves as a basis for
coercion, exploitation, or duress. Therefore, I find that the individual has resolved the security
concerns under Guideline D.
B. Guideline E: Personal Conduct
The Guideline E concern in this case involves the individual’s history and pattern of making poor
decision-making regarding her personal relationships. As stated under Guideline D, under
Guideline E, the individual must provide sufficient evidence to demonstrate that she is reliable,
trustworthy, and no longer vulnerable to exploitation, manipulation, or duress as a result of this
conduct. Conditions that may mitigate security concerns under this Guideline include that “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 case doubt on the
individual’s reliability, trustworthiness, or good judgment” or “the individual has acknowledged
the behavior and obtained counseling to change the behavior or taken other positive steps to
alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other
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inappropriate behavior, and such behavior is unlikely to recur.” See Guideline E at ¶ 17(c), (d).
Here, the individual has acknowledged her behavior and has obtained counseling to address the
issues, stressors and past trauma that led to her poor judgment and decisions. The individual
convinced me that she has learned from her past behavior and has gained, through counseling, the
tools needed to make better decisions in her relationships. Her current boyfriend and her
counselors credibly testified that the individual is trustworthy and reliable and is in a better position
to engage in healthy relationships and decision-making. For these reasons, I find that the
individual has sufficiently resolved the DOE’s security concerns under Guideline E.
VI. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raised serious security concerns under Guidelines D and E. 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
find that the individual has brought forth convincing evidence to adequately resolve the security
concerns associated with Guidelines D and E. I therefore find that restoring the individual’s access
authorization would not endanger the common defense and security, and would be consistent with
the national interest. Accordingly, I find 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.
Kimberly Jenkins-Chapman
Administrative Judge
Officer of Hearings and Appeals
Date: January 11, 2018