PSH-17-0064

*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: September 7, 2017 ) Case No.: PSH-17-0064
)
_________________________________________ )
Issued: December 26, 2017
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Administrative Judge Decision
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William M. Schwartz, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXXX (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 National Security
Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or
Eligibility to Hold a Sensitive Position (June 8, 2017) (Adjudicative Guidelines), I have
determined that the individual should not be granted an access authorization.
I. Background
The individual is employed by a DOE contractor that requested a security clearance on his behalf.
While processing that request, the Local Security Office (LSO) obtained information about the
individual that indicated that he had over $15,000 in unpaid collection accounts and had a history
of criminal activity dating from 1999 through 2008. Because the criminal activity included three
alcohol-related arrests in 2000, 2003, and 2005, the LSO had the individual evaluated by a DOE
consultant psychologist, who determined that the individual met the Diagnostic and Statistical
Manual of the American Psychiatric Association, 4th Edition TR (DSM-IV-TR), criteria for Alcohol
Dependence and Alcohol Abuse, and the Diagnostic and Statistical Manual of the American
Psychiatric Association, 5th Edition (DSM-5), criteria for Alcohol Use Disorder.
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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On August 1, 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 F, G, 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 on September 27, 2017, I was
appointed the Administrative Judge in the case. At the hearing, the individual presented the
testimony of one witness, his wife, and testified on his own behalf. The LSO presented the
testimony of the DOE psychologist who had evaluated the individual. In addition to the testimonial
evidence, the LSO tendered 12 numbered exhibits into the record (Exhibits 1-12). The exhibits
will be cited in this Decision as “Ex.” followed by the appropriate numeric designation. The
hearing transcript will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
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 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
the individual’s 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). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited three bases for administrative review of the individual’s request
for access authorization, Guidelines F, G, and J. Guideline F addresses “failure or inability to live
within one’s means, satisfy debts, and meet financial obligations [which] may indicate poor self-
control, lack of judgment, or unwillingness to abide by rules and regulations, [and] can raise
questions about an individual’s reliability, trustworthiness, and ability to protect classified
information.” Adjudicative Guidelines, Guideline F at ¶ 18. In support of its security concerns
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under Guideline F, the LSO relied on the following information, which the LSO obtained through
credit reports, from the individual’s responses on a Questionnaire for National Security Positions
he completed in March 2016 (QNSP), and from his responses during a March 2017 personnel
security interview (PSI): eight unpaid collection accounts totaling $15,715 and statements that he
has not started to pay any of those debts, has not contacted any of the creditors, and does not intend
to take any action on them until he is “financially comfortable.” Ex. 1 at 1-2.
With respect to Guideline G, it is well established that that excessive alcohol consumption often
leads to the exercise of questionable judgment or the failure to control impulses, and can raise
questions about an individual’s reliability and trustworthiness. Adjudicative Guidelines,
Guideline G at ¶ 21. As bases for invoking Guideline G, the Notification Letter cited to the DOE
psychologist’s conclusions that the individual meets the DSM-IV-TR’s criteria for Alcohol
Dependence and Alcohol Abuse and the DSM-5 criteria for Alcohol Use Disorder, as well as the
individual’s own statements regarding three alcohol-related arrests in 2000, 2003, and 2005. Ex. 1
at 2.
Finally, the security concern expressed in Guideline J relates to criminal activity, which, by its
very nature, creates doubt about a person’s judgment, reliability, and trustworthiness, and calls
into question a person’s ability or willingness to comply with laws, rules, and regulations.
Adjudicative Guidelines, Guideline J at ¶ 30. As evidence of its concern under this Guideline, the
LSO enumerated 12 incidents of criminal activity dating from 1999 to 2008, three of which were
identified as alcohol-related. Ex. 1 at 3-4.
These allegations adequately support the invocation of Guidelines F, G, and J, and they raise
serious security concerns.
IV. Findings of Fact
Between the ages of 18 and 24, the individual was arrested nine times, cited for littering and for
disorderly conduct, and was issued a warrant for his arrest for failing to comply with sentencing
terms imposed for an earlier offense. The reasons for the arrests, the latest of which occurred in
2005, ranged from a firearm offense to breaking and entering, including disturbing the peace,
disorderly conduct, public intoxication, driving under the influence of alcohol, and possession of
marijuana. Of those arrests, three were alcohol-related: driving under the influence at age 19,
public intoxication at age 22, and assault with a deadly weapon (while intoxicated) at age 24. The
individual did not challenge the accuracy of the records regarding any of these infractions, though
he stated during the hearing that he no longer recalled a number of them. Tr. at 80-89. He and his
wife each testified, however, that a November 2008 citation for disorderly conduct listed in the
Notification Letter was not correct; he was not present in the city where the offense allegedly
occurred, and contended that someone else must have used his identity when confronted by the
police. Id. at 15-17, 77-79.
The individual married in 2006 and is now the father of two children. His wife testified that while
they both enjoyed partying when they were younger, she had no concerns about his alcohol
consumption until his 2005 arrest, even though he was then drinking on a daily basis. Id. at 19, 28.
Complying with a condition of probation arising from that arrest, the individual stopped drinking
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for five years, and remained abstinent until 2012. Id. at 63. Since he resumed consuming alcohol
in 2012, he drinks only on weekends. Id. at 21, 70. His wife testified that he is now more attentive
to his family and, in her opinion, keeps his alcohol consumption under control, but she recognizes
that alcohol will always be a problem for him to manage. Id. at 26-28. She testified that since the
arrests, her husband has matured, and takes seriously his responsibilities to his family, noting that
he has had no problems with the law since his first child was born in 2006. Id. at 32-33. The
individual stated that he plans to continue to reduce his alcohol consumption. Id. at 72, 76.
The individual’s financial difficulties mirror the nation’s economic downturn of the last decade.
He was regularly employed until 2008, when he was laid off, at which time his wife became the
sole provider for the family. Before the layoff, the family was financially comfortable, and he had
bought himself an expensive motorcycle. After the layoff, they were living from paycheck to
paycheck, and paying the monthly loan payment on the motorcycle became a hardship; though he
held onto the motorcycle for as long as possible, eventually he turned it in to the lienholder. He
nevertheless owes the amount of the loan, which constitutes nearly $14,000 of the total outstanding
debt of $15,715. Id. at 36-37, 39; Ex. 1. Now that they have had two incomes for some time, they
are in the position to start paying their outstanding debts. Id. at 103. They are, however,
constructing a home and, until it is outfitted sufficiently for them to move into, they are directing
all of their available funds toward that project. They will focus on the outstanding debts after they
inhabit their new home. Tr. at 38, 41, 101. In order to avoid falling into debt in the future, they are
committed to living as if they have only one income, while saving the other income as a cushion
against the unexpected. Id. at 40-41.
The DOE psychologist conducted an evaluation of the individual in May 2017. After reviewing
the individual’s personnel security file, interviewing him, and interpreting the answers he provided
to a number of standardized psychological tests, the DOE psychologist concluded that the
individual meets the DSM-IV-TR criteria for alcohol abuse and alcohol dependence in the past,
but also meets the DSM-5 criteria for alcohol use disorder currently. Ex. 6 at 15-16. His conclusion
was based in part on the individual’s report of his alcohol consumption at the time of the
evaluation: 6 to 12 beers and 2 to 3 shots of whiskey or scotch when he drinks, which he stated to
be one or two days per weekend, and two weekends out of the month. Id. at 4. At the hearing, the
DOE psychologist testified that he had understood from the testimony of the individual and his
wife that the individual was now drinking less than he had been at the time of the evaluation. Tr.
at 120. While acknowledging that the individual is now drinking more responsibly than before, the
DOE psychologist expressed his opinion that the individual is still drinking excessively when he
does drink. Id. at 130. He observed that people with alcohol problems should not be drinking at
all, and should be receiving some kind of treatment. Id. at 133. Because the individual was
continuing to drink, the DOE psychologist was not willing to state that the individual had shown
adequate evidence of rehabilitation or reformation from his alcohol disorder. Id. at 134.
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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 should not be granted a security clearance at this time. I cannot 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 F
Financial difficulties form the basis of the LSO’s Guideline F concerns. Outstanding debts paint a
picture of failure or inability to satisfy debts, which could render a person susceptible to engaging
in illegal or otherwise questionable acts to generate funds. Adjudicative Guidelines, Guideline F
at ¶ 18. Apart from the largest one by far—the note on the motorcycle—the individual has no
recollection of how the debts were incurred, but testified at the hearing that he acknowledges them
and can now afford to pay them. Nevertheless, he has not paid any of them, stating that he wants
to pay them all in full at once, and lacks the finances to do so, in large part because he is using all
available funds to complete his house. Tr. at 99-101.
Having reviewed the conditions presented in Guideline F of the Adjudicative Guidelines that could
mitigate security concerns related to financial irresponsibility, I find that some of these conditions
apply to the facts of this case: the individual’s behavior that led to many of these concerns
happened several years ago, as a result of loss of employment. Adjudicative Guidelines,
Guideline F at ¶ 20(a), (b). Moreover, the individual and his wife appear to live within their means
now, and are current on their expenses. Tr. at 105, 110. I question the individual’s judgment,
however, regarding the priorities he is imposing on the use of the funds he currently has available
to him. He is well aware that the LSO has expressed its concern about the lingering debt burden
that he is shouldering, and that successfully addressing that concern is an important factor in the
decision to grant or deny his security clearance. Instead, however, the individual has adopted a
plan that entails delaying repayment of these debts until construction on his house has progressed
and then, until he has amassed enough money to pay off all the outstanding debts in full at once.
Because he has not yet addressed his debts and has not convinced me that they will be addressed
at a specific time in the near future, I find that the individual has not resolved the LSO’s concerns
under Guideline F.
B. Guideline G
The LSO’s Guideline G security concerns revolve around the individual’s long-time use of alcohol
that has led to frequent intoxication over the years. Certainly, when an individual is intoxicated,
his good judgment is challenged, and his reliability and trustworthiness become questionable. The
individual now drinks far less than he did when he was younger, particularly before his 2005 arrest.
Following a period of abstinence required by his probation, he resumed drinking, but in lesser
amounts and only on some weekends. The DOE psychologist expressed his opinion, with which
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I agree, that the individual is taking steps in the right direction to reduce his use of alcohol.
Nevertheless, even after hearing testimony that the individual had further curtailed his alcohol
consumption following the evaluation, the psychologist determined that the individual had not yet
achieved rehabilitation or reformation from his alcohol use disorder, primarily because he
continues to consume alcohol and has not sought treatment. In light of the DOE psychologist’s
professional assessment of the individual’s current status with respect to alcohol use, I find that
the individual has not resolved the LSO’s concerns under Guideline G.
C. Guideline J
Criminal activity raises security concerns under Guideline J. An individual who is unable or
unwilling to comply with laws, rules, and regulations is a risky choice to entrust with the handling
of classified information, which requires strict adherence to its own set of laws, rules, and
regulations. The individual and his wife each testified credibly that the 2008 citation for disorderly
conduct was incorrectly attributed to the individual. Discounting that offense, the individual’s
criminal activity, while substantial, ended when he was 24 years old. In the ensuing 12 years, he
got married, has had two children, and has settled down to a life of work and domesticity. At the
hearing, he and his wife credibly presented themselves as a team, united to build a secure life for
themselves and their family. Both emphasized that he is a different person now from the one he
was as a young, unmarried man without responsibilities. Tr. at 32, 90-92. I find that one of the
mitigating factors regarding Guideline J applies under these circumstances: “so much time has
elapsed since the criminal behavior happened . . . that it is unlikely to recur and does not cast doubt
on the individual’s reliability, trustworthiness, or good judgment.” Adjudicative Guidelines,
Guideline J at ¶ 32(a). Accordingly, I find that the individual has resolved the LSO’s concerns
under Guideline J.
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 F, G, and
J of the Part 710 regulations. I further find that, while the individual has presented sufficient
evidence to resolve the LSO’s concerns under Guideline J, he has not succeeding in fully resolving
the concerns raised under Guidelines F and G. Therefore, I cannot conclude that granting 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 not grant an access authorization to the individual at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
William M. Schwartz
Administrative Judge
Office of Hearings and Appeals
Date: December 26, 2017