PSH-18-0019

*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: March 1, 2018 ) Case No.: PSH-18-0019
)
__________________________________________)
Issued: June 1, 2018
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Administrative Judge Decision
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Richard A. Cronin, Jr., Administrative Judge:
This Decision concerns the eligibility of XXXXXXX (hereinafter referred to as “the Individual”)
for access authorization under the Department of Energy’s (DOE) 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’s security clearance should not be restored.
I. BACKGROUND
The Individual began working for a DOE contractor in 2017 and held a security clearance until its
suspension in November of that year. Tr. at 15. In March 2016, the Individual was arrested for
Driving While Intoxicated (DWI). Ex. 7 at 9. In August 2017, the Individual sat for a personnel
security interview (PSI) with the local security office (LSO) to update DOE on his DWI case’s
progress. Ex. 7. During this PSI, the Individual disclosed that, in late June or early July 2017, he
had received a traffic citation, with an accompanying fine of $400, for driving with an invalid
license.2 Ex. 7 at 27, 44, 47. He then disclosed that, though his driver’s license had been suspended
in early 2017, he had been driving to and from work two or three times per week. Ex. 7 at 49. The
Individual had not disclosed the traffic citation as required. The Local Security Office (LSO) began
1 Under the regulations, “Access authorization” means 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 also be referred to in this Decision as a security clearance.
2 For convenience, I will deem the date of this citation as occurring in June 2017.
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the present administrative review proceeding by issuing a Notification Letter to the Individual
informing him that he was entitled to a hearing before an Administrative Judge in order to resolve
the substantial doubt regarding his eligibility to continue holding a security clearance. See
10 C.F.R. § 710.21.
The Individual requested a hearing and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Administrative Judge
in this matter on March 5, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e)
and (g), I took testimony from the Individual, his wife, his brother-in-law, his former colleague, his
current manager, and the counselor for his rational behavior training program. The LSO submitted
nine exhibits, marked as Exhibits 1 through 9 (hereinafter cited as “Ex.”). The individual submitted
no exhibits.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
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 National Security Adjudicative Guidelines
for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position, effective June 8, 2017 (Adjudicative Guidelines).
Under Guideline E, Personal Conduct, the LSO alleges that the Individual failed to timely report
his June 2017 traffic citation, despite acknowledging that he had twice been advised of the reporting
requirements. Ex. 1 at 1. The Guidelines provide that “[c]onduct 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.” Adjudicative Guidelines at ¶ 15. Accordingly, the Individual’s admissions
adequately justify the LSO’s invocation of Guideline E.
Under Guideline J, Criminal Conduct, the LSO alleges that the Individual has engaged in criminal
activity based upon his 27 arrests and traffic citations spanning from 1998 to 2017. Ex. 1 at 1–2.
The Guidelines provide that “[c]riminal 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.” Adjudicative Guidelines at ¶ 30. One of
the conditions set forth in the Guidelines that could raise a disqualifying security concern is, “a
pattern of minor offenses, any one of which on its own would be unlikely to affect a national
security eligibility decision, but which in combination cast doubt on the Individual's judgment,
reliability, or trustworthiness.” Adjudicative Guidelines at ¶ 31(A). The Individual’s history of
citations and arrests justifies the LSO’s invocation of Guideline J.
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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
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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 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). 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.
The discussion below reflects my application of these factors to the testimony and exhibits
presented by both sides in this case.
IV. FINDINGS OF FACT
The Individual does not dispute the facts as recorded in the Notification Letter. See Hearing
Transcript (Tr.) at 72. The Individual has an extensive history of traffic citations and arrests. A
summary is provided below:
Date Citation or Arrest
June 2017 Driving on Suspended License
March 2016 Driving While Intoxicated (DWI)
August 2015 Failure to Maintain Financial Responsibility
Speeding
October 2014 Failure to wear Seatbelt
Failure to Have a Valid Inspection Certificate
June 2010 Assault by Contact
April 2008 No Valid Inspection Certificate
Failure to Possess a Valid Driver’s License
Failure to Possess Liability Insurance
January 2008 Failure to Possess a Valid Driver’s License
Failure to Possess Liability Insurance
Speeding
December 2007 Assault by Contact on a Family Member
August 2007 Speeding
Failure to Possess Liability Insurance
Failure to Possess a Valid Driver’s License
August 2007 Speeding
Failure to Possess Liability Insurance
August 2006 Speeding
Failure to Possess Liability Insurance
Failure to Possess a Valid Driver’s License
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July 2006 Speeding
June 2006 DWI (reduced to Deadly Conduct)
December 2005 Parking in a Prohibited Zone
April 2005 Parking in a Prohibited Zone
September 2004 Speeding
Failure to Possess Liability Insurance
Failure to Possess a Valid Driver’s License
May 2004 Interference with Duties of a Public Servant
Disorderly Conduct (Abusive Language)
Public Intoxication
Possession of Drug Paraphernalia
June 2003 Failure to Wear a Safety Belt
Failure to Possess Liability Insurance
May 2003 Speeding
Failure to Wear a Safety Belt
August 2002 Speeding
Failure to Possess Liability Insurance
Failure to Possess a Valid Driver’s License
May 2001 Minor in Possession of Alcohol
February 2001 Speeding Too Fast for Conditions
Failure to Possess Liability Insurance
Failure to Stop at a Red Light
Failure to Have a Valid Registration
February 2000 Possession of Marijuana and Drug Paraphernalia
January 2000 Minor in Possession of Alcohol
May 1998 Forgery of a Financial Instrument
Evading Arrest
Criminal Trespass
See Ex. 1, Ex. 9 at 102-17.
As indicated above, the Individual was arrested for DWI in March 2016. Ex. 7 at 9. Because his
DWI case was not resolved by the time he received his security clearance, he was required to submit
to the PSI to keep the LSO apprised of the case’s status. Ex. 7 at 9. In August 2017, the LSO
conducted a PSI of the Individual. Ex. 7. During the interview, the Investigator asked if the
Individual had experienced any other traffic stops or violations since March 2016. Ex. 7 at 23. The
Individual responded that he had not. Ex. 7 at 23. Later, when the Investigator asked again, the
Individual said he “just now remembered” that he had, within the last two months, received a ticket,
with an accompanying fine of $400.00, for driving with an invalid license. Ex. 7 at 27, 47.
The Investigator asked why he had not reported the incident. Ex. 7 at 45. The Individual stated that
he believed that he did not need to report traffic violations under $1,000.00. Ex. 7 at 45. The
Investigator reminded him that, in a previous PSI, she had informed him that he needed to report
traffic violations resulting in fines of $300.00 or more. Ex. 7 at 45. The Individual stated that he
also had a security orientation in January 2017 that covered reporting requirements. Ex. 7 at 46. He
stated that he had not asked anyone for clarification on the reporting requirements after receiving
the June 2017 traffic citation. Ex. 7 at 47.
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With regard to the June 2017 citation, the Individual told the Investigator that he was stopped for
speeding on his way to work. Ex. 7 at 42. The officer informed the Individual that his driver’s
license was invalid. Ex. 7 at 42. However, because the Individual showed the officer that he had
paid all the fees to get an occupational driver’s license, the officer only cited him for driving with
a suspended license, giving him just a warning for speeding. Ex. 7 at 42. The Individual told the
Investigator that he was informed in March 2016 that his driver’s license would be suspended and
that he would need an occupational license to drive. Ex. 7 at 31. After his license was suspended
in April 2017, the Individual began looking into the process of getting an occupational license. Ex.
7 at 33. Meanwhile, he continued driving to and from work two to three times per week. Ex. 7 at
49. As of the August 2017 PSI, the Individual had not yet had his occupational license hearing.
The Investigator asked the Individual why he continued driving when he knew that he did not have
a valid license. Ex. 7 at 36. The Individual responded that he has been very cautious and that he
had only gotten pulled over once. Ex. 7 at 36. The Investigator reminded him that driving without
a valid license showed disregard of the law. Ex. 7 at 36. The Individual responded that he had to
drive to get to work and was doing his best to get his occupational license. Ex. 7 at 36. When the
Investigator asked what he would do if he did not receive an occupational license, the Individual
simply stated. “I should get it,” and “I’m hoping for the best.” Ex. 7 at 38.
The Individual was represented by counsel at the hearing in this matter. The majority of the
testimony focused on the Individual’s failure to report his June 2017 traffic citation and the various
programs that the Individual had attended. The Individual’s wife testified that the Individual had
been attending rational behavior training and was learning how to make positive decisions and to
“face the problem head-on, versus just maybe hoping it works itself out.” Tr. at 15–16. She testified
that he had also recently completed an intensive outpatient program for alcohol use. Tr. at 17. She
further testified that family is central to the Individual’s life and that he wants to continue working
for the DOE contractor so he can support them. Tr. at 21. Finally, she testified that the Individual
will report traffic tickets of any amount now, and that he has committed to asking questions and
getting help when he does not know what to do. Tr. at 21.
The Individual’s current supervisor testified that the Individual is a hard worker, a humble man,
and very trustworthy. Tr. at 34. She testified that he has matured in his months working for her,
and that she believes he would have reported his most recent traffic ticket if she had been his
supervisor at the time. Tr. at 36. When asked if she knew what DOE’s concerns were, she said the
“speeding tickets” and the Individual’s failure to timely report his most recent one. Tr. at 41. She
did not give any testimony indicating that she was aware that the Individual had been driving with
an invalid license.
The Individual’s brother-in-law testified to his character, describing the Individual as a
conscientious family man. Tr. at 52–54. He testified that the Individual has declined to spend time
with friends who go out drinking because he does not want that behavior to affect his job. Tr. at
48–49. He further testified that the Individual has taken classes and gone to counseling because he
knows that he needs to do so in order to keep his job. Tr. at 50–51. He also testified that the
Individual “follows the rules tremendously, especially … if it comes to his job, that’s his
livelihood,” and that the Individual does not want to jeopardize his employment. Tr. at 54. He
testified that he believes the Individual would seek guidance on reporting requirements in the
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future, but he did not give any testimony indicating that he was aware that the Individual had been
driving with an invalid license.
The Individual’s former colleague testified that the Individual was a trustworthy and capable
employee. Tr. at 61–63. He testified that he never had any concerns about the Individual’s handling
of confidential information at that job. Tr. at 61. He testified that the Individual had great judgment
as it pertained to the workplace. Tr. at 65. When asked if he knew what DOE’s concerns were, he
said that the Individual was not very specific with the details and that he had the impression that it
had something to do with tickets and questions about the Individual’s integrity. Tr. at 66–68. He
did not give any testimony indicating that he was aware that the Individual had been driving with
an invalid license.
The Individual testified on his own behalf. He testified that he wants to show that he is a man of
integrity, no matter the result of the hearing. Tr. at 71. He testified that, at the time of the hearing,
he had an occupational driver’s license. Tr. at 73. The Individual testified that he has learned the
importance of taking care of issues in his life and that he will report any infractions in the future,
no matter how minor. Tr. at 76. He stated that, having taken rational behavior training, he will now
weigh the consequences of decisions before making them, asking himself, “Is this going to be worth
it?” Tr. at 79. He also testified that he has not hidden his past from the people in his life and is not
subject to blackmail about his transgressions. Tr. at 82. He testified that he would never jeopardize
the trust placed in security clearance holders. Tr. at 82. The Individual testified that he had
abstained from alcohol since the beginning of 2018. Tr. at 104. He had also been in counselling for
his poor decision-making, including about five sessions with his rational behavior training
counselor. Tr. at 88, 109. When asked if he knew what DOE’s concerns were, he said, “I didn’t
turn in a ticket in a timely manner and just poor decision-making.” Tr. at 94. He stated that he
intends to follow all rules, laws, and regulations.
When questioned directly about his driving without a valid license, the Individual listed several
reasons why he had done so. Tr. at 110. He also stated that he had not been pulled over since his
June 2017 ticket. He did not, however, give any indication that he had stopped driving with an
invalid license following his PSI.
The Individual’s rational behavior training counselor testified that the Individual is very motivated
to make better decisions going forward. Tr. at 128–29. He stated his belief that the Individual has
a good prognosis and that he was maturing quite a bit as a result of the administrative review
process. Tr. at 133. He described the current matter as relating to the Individual’s failure to timely
report his ticket. Tr. at 126.
V. ANALYSIS
The issue before me is whether the Individual, as he stands at the time of his hearing, presents an
unacceptable risk to national security and the common defense. I must consider all the evidence,
both favorable and unfavorable, in a common sense manner.
Guideline E provides that the following conditions (in relevant part) may mitigate Personal
Conduct security concerns: (1) the individual made prompt, good-faith efforts to correct the
omission, concealment, or falsification before being confronted with the facts; (2) the offense is so
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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 cast doubt on the individual’s
reliability, trustworthiness, or good judgment; (3) 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 contributed to untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur; and (4) association with persons
involved in criminal activities was unwitting, has ceased, or occurs under circumstances that do
not cast doubt upon the individual's reliability, trustworthiness, judgment, or willingness to comply
with rules and regulations. Adjudicative Guidelines at ¶ 17(a), (c), (d), (g).
Mitigating factors for Guideline J include the passage of so much time since the criminal activity
that further criminal behavior is unlikely, and evidence of successful rehabilitation. Adjudicative
Guidelines at ¶ 32(a), (d). Because of the strong presumption against restoring security clearances,
I must deny restoration unless I am convinced that the LSO’s security concerns have been mitigated
such that restoring the Individual’s clearance is not an unacceptable risk to national security.
A. Guideline E
The Individual testified that he will now report any infraction he makes, however small. His
witnesses all supported that testimony with their own. However, it is troubling that at his first
chance to divulge his June 2017 citation, the Individual denied any encounters with law
enforcement. At the time of the PSI, the encounter was recent and the Individual was still making
payments on the fine. It is difficult to believe, with all of the detail that the Individual subsequently
provided, that the incident simply slipped his mind. Whether the Individual actively sought to
deceive the Investigator, or whether he simply had a gut reaction to conceal his traffic citation, his
honesty is called into question as much for that active misdirection as for his failure to timely report
the incident to his supervisor. The Individual’s witnesses spoke of his honesty and trustworthiness
going back years, but his lack of candor with the Investigator tells a different story.
Since receiving the Notification Letter, the Individual has received counseling for his poor
decision-making and accepted responsibility for his actions. Adjudicative Guidelines at ¶ 17(d).
However, five sessions seems too short to reverse 20 years of poor decision-making. He has
eschewed old friends with bad habits, but those habits do not appear to have been relevant to the
Individual’s honesty, candor, or driving practices. Adjudicative Guidelines at ¶ 17(g). Furthermore,
I cannot find that the Individual made a good-faith effort to come forward about his traffic violation
when first asked. Adjudicative Guidelines at ¶ 17(a). Finally, the behavior the Individual concealed
was habitual, both in terms of his citations over the years and his admission that he drove without
a valid license multiple times per week for several months. Given the relatively short period of time
the Individual has demonstrated reformed behavior, I cannot find that the Guideline E security
concerns raised by the Individual’s failure to report his 2017 traffic citation (Driving on a
Suspended License) have been totally resolved.
B. Guideline J
The Individual presented little testimony at his hearing about his knowingly and habitually driving
without a valid driver’s license. He submitted no exhibits. He was offered a chance to renounce his
behavior and testify that he had stopped it immediately. Significantly, he did not do so. Instead,
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the Individual listed the reasons he had driven illegally; lamented the fact that he had put himself
in a position where he had to do so; and focused on the fact that he had not been pulled over since
the incident. In making these statements, the Individual displayed the weighing of consequences
he was taught to do in his decision-making classes. Notwithstanding, the Individual’s recent
calculated decision to deliberately drive without a license is very concerning.
The Individual’s traffic offense/criminal behavior is part of a pattern going back approximately 20
years, with the most recent incident occurring just last year.3 Adjudicative Guidelines at ¶ 32(a).
While the Individual has sought counseling to help him make better decisions, as discussed above,
the relatively short duration of such counseling is not sufficient to convince me that his pattern of
inattention to legal requirements and laws is no longer a security concern. Adjudicative Guidelines
at ¶ 32(d). Further, the Individual has often gone several months to a year between his traffic
citations. Ex. 1 at 3. Thus, the fact that the Individual has gone one year without being cited is
insufficient to show rehabilitation. While the Individual has made some significant efforts to reform
his behavior and to increase his focus and attention to problems, I cannot find that the Guideline J
concerns have been totally resolved.
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 further find that the Individual has not succeeded in fully resolving those
concerns. Therefore, I cannot conclude that restoring the Individual’s DOE 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). Accordingly, I find that the DOE should not restore 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.
Richard A. Cronin, Jr.
Administrative Judge
Office of Hearings and Appeals
3 The Individual provided testimony that a number of these arrests/citations were ultimately dismissed. Tr. at 107-111.
A number of the citations for Failure to Possess Liability Insurance and Failure to Possess a Valid Driver’s License
were dismissed when the Individual presented evidence to a Court that he, in fact, had liability insurance and a driver’s
license. Tr. at 112. However, in the Individual’s state of residence it is required to carry proof of insurance and a
driver’s license. The Individual, despite receiving citations, failed to comply with this legal requirement on numerous
occasions, providing further evidence of a pattern of criminal behavior.
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