PSH-18-0030

*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 30, 2018 ) Case No.: PSH-18-0030
)
_________________________________________ )
Issued: June 28, 2018
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Administrative Judge Decision
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Katie Quintana, 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 “General Criteria and 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
conclude that the individual’s access authorization should not be restored.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. In July 2017, the individual self-reported that he had been arrested and charged with
battery on a peace officer; assault against a household member; resisting, evading or obstructing
an officer; and operations of vehicles on approach of authorized emergency vehicles. Ex. 9. He
subsequently reported that a restraining order had been issued against him. Ex. 8. The local security
office (LSO) conducted a Personnel Security Interview (PSI) with the individual in October 2017.
Ex. 14. In response to information gathered at the PSI, a DOE consulting psychologist evaluated
the individual. Ex. 10.
Because the psychologist’s evaluation raised unresolved security concerns, the LSO informed the
individual in a Notification Letter dated February 21, 2018 (Notification Letter), that it possessed
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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reliable information that created substantial doubt regarding his eligibility to hold a security
clearance. In an attachment to the Notification Letter, the LSO explained that the derogatory
information raised security concerns under Guideline I (psychological conditions) and Guideline J
(criminal conduct) of the Adjudicative Guidelines. Ex. 1.
Upon receipt of the Notification Letter, the individual exercised his right under the Part 710
regulations by requesting an administrative review hearing. Ex. 2. The Director of the Office of
Hearings and Appeals (OHA) appointed me the Administrative Judge in the case, and I
subsequently conducted an administrative hearing in the matter. At the hearing, the DOE Counsel
submitted 17 numbered exhibits (Exhibits 1-17) into the record and presented the testimony of the
DOE psychologist. The individual tendered two exhibits, labeled Exhibits A and B, and presented
the testimony of six witnesses, including himself. The exhibits will be cited in this Decision as
“Ex.” followed by the appropriate alphabetical or numeric designation. The hearing transcript in
the case will be cited as “Tr.”, followed by the relevant page number.
II. Regulatory Standard
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
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.
III. Notification Letter and Associated Security Concerns
As previously mentioned, the Notification Letter included a statement of derogatory information
that raised concerns about the individual’s eligibility for access authorization. The information in
the letter specifically cites Guidelines I and J of the Adjudicative Guidelines. Guideline I relates to
certain emotional, mental and personality conditions that can impair judgment, reliability, or
trustworthiness. Guideline I at ¶ 27. An opinion by a duly qualified mental health professional that
an individual has a condition that may impair judgment, stability, reliability, or trustworthiness can
raise a security concern under Guideline I. Id. at ¶ 28(b). With respect to Guideline I, the LSO
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relied upon the DOE psychologist’s conclusion that, pursuant to the Diagnostic and Statistical
Manual of Mental Health Disorders, Fifth Edition (DSM-5), the individual met the criteria for
Adjustment Disorder with Mixed Anxiety and Depressed Mood; Other Specified Obsessive
Compulsive Disorder: Obsessional Jealousy; and Unspecified Disruptive, Impulse-Control, and
Conduct Disorder. Ex. 1 at 1. The LSO cited the psychologist’s determination that, as a result of
meeting these criteria, the individual has emotional, mental, and personality conditions which can
impair his judgment, stability, reliability, and trustworthiness. Id.
Guideline J relates to security risks arising from criminal conduct. Criminal activity creates doubt
about a person’s judgment, reliability, and trustworthiness. Guideline J at ¶ 30. Involvement in
criminal conduct calls into question a person’s ability or willingness to comply with laws, rules, or
regulations. Id. In citing Guideline J, the LSO cited six incidents of criminal activity in which the
individual was:
1. Arrested and charged with: Battery Upon a Peace Officer (4th degree felony); Assault
Against a Household Member; Resisting, Evading, or Obstructing an Officer (two counts);
and Operation of Vehicles on Approach of Authorized Emergency Vehicles in July 2017;
2. Issued a Restraining Order in July 2017;
3. Cited for Speeding 21-25 miles per hour over the speed limit in a school zone in March
2016;
4. Arrested and charged with Aggravated Battery Against a Household Member in June 2001;
5. Observed to be Resisting and Obstructing a police officer in April 1987; and
6. Cited for Reckless Driving in January 1987.
Ex. 1 at 1-2.
IV. Findings of Fact
I have carefully considered the totality of the record in reaching the findings of fact set forth below.
After being arrested in July 2017, following an incident with his ex-wife, the individual underwent
a PSI in October 2017. During the PSI, the individual acknowledged the occurrence of each event
of criminal conduct that was subsequently cited in the Notification Letter. Ex. 14 at 54-55, 68, 108-
109, 112, 114-115, 118. The individual was then evaluated by a DOE consultant-psychologist
(psychologist) in December 2017. Ex. 10.
The psychologist’s evaluation noted that, following his 2001 arrest, the individual was court-
ordered to attend a six-month anger management program. Ex 10 at 2. He then underwent
professional counseling in 2015 due to marital problems with his wife. Id. The psychologist
contacted the counselor who stated that she diagnosed the individual with Adjustment Disorder
with Anxiety pursuant to the DSM-5. Id. The counselor explained that the individual had
“irrational” thoughts about “suspicions that his wife was seeing someone else,” and that the
individual had a “history of jealousy.” Id. at 3. The counselor stated that she advised that the
individual read a book addressing verbal abuse and non-violent communication. Id. When the
psychologist questioned the individual about his experience in counseling, the individual reported
that he found it helpful and that he learned “how to avoid a fight [and] walk away.” Id. at 3. He
explained that the book about verbal abuse helped him “work on non-violent communication.” Id.
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The individual also reported to the psychologist that he and his wife engaged in counseling sessions
with their pastor in 2016. Id. However, after an incident in which the individual pushed his wife
and she fell, the wife ceased attending the counseling sessions. 2 Id.
The psychologist reported that at the time of her evaluation, the individual was subject to an Order
of Protection. Id. at 7. The Order of Protection prohibits the individual from having communication
with his now ex-wife and coming within 25 yards of her. Ex. 7. It also requires him to attend
counseling. Id. The Order of Protection is effective though late September of 2018. Id. The
psychologist noted that the individual reported that he is attending a court-ordered Domestic
Violence Prevention Program. Ex. 10 at 4. The court ordered that the individual attend 52 weekly
group therapy sessions. Id. When the psychologist contacted the program counselor, the counselor
reported that the program is not therapy or treatment, but is instead intended to be education and
counseling-based. Id. The counselor noted that the individual had not reported having “problems”
in prior relationships. Id.
As a result of her interview with the individual and her discussions with his prior and current
counselor, the psychologist determined that the individual met the DSM-5 criteria for Adjustment
Disorder with Mixed Anxiety and Depressed Mood, which she noted was similar to his prior
counselor’s diagnosis. Id. at 7. In support of this diagnosis, she cited the individual’s history of
verbal and physical aggression in his romantic relationships, his self-description that he is “set in
[his] ways” and “obsesses about arguments,” and his current counselor’s description that he has
“some obsessive-compulsive tendencies…he can’t control other people and gets irritated.” Id. at 8.
The psychologist noted that the individual “does not seem to realize the degree of his aggression,”
and she explained that he is “inclined to explain his behaviors as justified responses to others’
treatment of him.” Id.
The psychologist also concluded that the individual’s feelings and behaviors were consistent with
the DSM-5 features of Other Specified Obsessive Compulsive Disorder: Obsessional Jealousy,
which she explained was characterized by a “preoccupation with a partner’s perceived infidelity.”
Id. Additionally, due to the individual’s inability to modulate his emotions and control his
behaviors when he is angry, anxious, or distressed, the psychologist found that he met the criteria
for Unspecified Disruptive, Impulse-Control and Conduct Disorder. Id. She noted that the
combination of the individual’s “emotional and behavioral tendencies to lose control, become
aggressive, and blame others for conflicts constitutes emotional, mental, and personality conditions
which can impair [the individual’s] judgment, stability, reliability, and trustworthiness.” Id.
V. Analysis
I have thoroughly considered the record of 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
2 The individual claims that the wife tripped after he pushed her. Ex. 10 at 3.
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prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due deliberation, I have
determined that the individual has not sufficiently mitigated the security concerns noted by the
LSO with regard to Guidelines I or J. I cannot 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). Therefore, I have determined that the individual’s security
clearance should not be restored. The specific findings that I make in support of this decision are
discussed below.
As an initial matter, I note that legitimate security concerns exist as a result of the DOE
psychologist’s evaluation and the individual’s criminal history.
At the hearing, the individual presented the testimony of five witnesses: a friend, the husband of
his first ex-wife,3 two of his clients, and his counselor. His friend and the husband of his first ex-
wife both testified that they had never seen the individual act aggressively and felt that he was able
to control his emotions. Tr. at 14-15, 23. They further stated that they feel he is honest, reliable and
trustworthy. Id. at 15, 32-33. The husband of the first ex-wife elaborated, stating that the individual
had attended a marriage class he taught and felt that the 2017 incident between the individual and
his most recent ex-wife was out of character for him. Id. at 23. Both of the individual’s work clients
also indicated that the incident was not representative of the individual’s typical behavior. Id. at
42, 58.
The individual’s pastoral counselor testified that, beginning in 2016, the individual engaged in
marital and individual counseling with him. Id. at 73. The pastoral counselor explained that he was
aware of both the July 2017 incident with the ex-wife and of a prior incident in which the individual
pushed her, causing her to fall and become injured. Id. at 71-72, 74, 80, 91. The pastoral counselor
testified that, since the incident, he has held two counseling sessions with the individual and talked
“on the phone or just casually a few times about it.” Id. at 72. He testified that he has noticed
“tremendous change” in the individual over time; however, he has not engaged in a counseling
session with the individual for “a little over a month, maybe as much as two months.” Id. at 73; 80.
The pastoral counselor stated that he was surprised to learn about the July 2017 incident, and he
has not seen any type of psychological aberrations in the individual; however, he also testified that
he was unaware of the individual’s criminal history, nor was he aware of any physical altercations
the individual had in prior romantic relationships. Id. at 81, 84, 95-96. Although the pastoral
counselor stated that he did not know if the individual was currently engaged in a romantic
relationship, he was aware that the individual continues to communicate with his ex-wife
telephonically and via text message. Id. at 93-94. He further stated that he individual sees his ex-
wife in church occasionally. Id. at 94.
The individual testified on his own behalf. Addressing his criminal history, the individual
acknowledged that each of the six incidents listed on the LSO’s summary of security concerns had
occurred. Id. at 100-101, 102, 104, 105, 121. The individual explained that as a result of the 2017
incident with his ex-wife, the court placed him on a one-year probation and ordered that he attend
52 weeks of domestic violence classes. Id. at 114. He also acknowledged that the court issued his
ex-wife a restraining order against him, which is in effect until September 2018. Id. The individual
3 The “first ex-wife” is different from the ex-wife involved in the 2017 incident.
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stated that he has attended 22 of the 52 weekly domestic violence classes, and his domestic violence
counselor submitted a document confirming his attendance and describing his positive progress
and growth. Id. at 115, 117; Ex. B. The individual further testified that he is in compliance with all
aspects of his probation, which his probation officer affirmed. Ex. A. However, the individual
stated that he has been communicating with his ex-wife one to two times per week, in violation of
the restraining order. Id. at 115, 117-118, 120.
Turning to his history of counseling and psychological treatment, the individual explained that in
2001, he was court-ordered to attend anger management, but it “was a joke.” Id. at 140. He stated
that he did not “get anything out of it.” Id. The individual also testified that he began seeing a
counselor individually in June 2015 for a little over one year. Id. at 131-132. He explained that the
counselor was “trying to give [him] the tools to communicate with [his ex-wife], but sometimes it
didn’t work too well.” Id. at 132. The individual eventually stopped attending counseling as it felt
he was “just wasting time and money.” Id. He further explained that he saw his pastor for marital
and individual counseling. Id. at 136. Lastly, the individual indicated that he is currently attending
counseling ordered by the court as a result of the 2017 incident with his ex-wife. Id. at 138. When
asked about specific tools he learned in this counseling, the individual stated that he has learned
that he “can choose to walk away;” however, he explained that there has not been anything that he
has “had to deal with” that would require him to exercise this new tool. Id. at 140.
In discussing the 2017 incident, the individual explained that, instead of engaging with his ex-wife
in a manner which prompted her to call the police, he “would have just walked away.” Id. at 147.
During the 2017 incident, a police officer became involved, and the individual was charged with
Battery on a Peace Officer as a result of an altercation that occurred. Ex. 9. The individual explained
that, although he apologized to the officer after being arrested, the police officer “was still rude and
a jerk,” and the individual “did not appreciate the way [the officer] conducted himself.” Id. at 145.
As such, the individual explained that is “one of the reasons [he does not] display remorse or show
remorse.” Id. When asked if he would have handled the situation with the officer differently after
he gained new tools through counseling, the individual stated, “I was willing to comply with the
officer if he would have been more professional.” Id. at 148.
The DOE psychologist testified last, after hearing all of the preceding testimony. She stated that,
with regard to her diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood,
the individual met five of the diagnostic criteria. Id. at 169-170. She indicated, however, that
adjustment disorders are “time limited,” in that such disorders arise in response to an external
situation and resolve once the situation is resolved. Id. at 169-170. With regard to her second
diagnosis of Other Specified Obsessive-Compulsive Disorder: Obsessional Jealousy, the
psychologist explained that with such a disorder, a person has a preoccupation with a partner’s
perceived infidelity, which the individual acknowledged, stating that he would “obsess” about his
ex-wife’s perceived infidelity. Id. at 171. The psychologist explained that her final diagnosis of
Unspecified Disruptive, Impulse-Control and Conduct Disorder was due to the individual’s
inability to control his conduct and his loss of impulse control. Id. at 172.
The psychologist testified that, after evaluating the individual, her opinion was that he had an illness
or mental defect which caused or may cause a significant defect in his judgment or reliability due
to his perception of “being wronged or disrespected or deceived, and that then being rationalized
by him, made acceptable by him to engage in behaviors that other people were frightened by or
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upset by or found intrusive.” Id. at 173. She further explained that the individual has difficulty
“seeing from another’s perspective how he presents himself and how that might make them feel.”
Id.
The psychologist additionally expressed concern that the individual had not disclosed the full extent
of his history of jealousy or domestic violence to his mental health providers. Id. at 174-175. She
indicated that when she contacted the individual’s first counselor, although the individual had
recently contacted the counselor to explain that the DOE psychologist would be calling, he did not
inform her of his current circumstances or the reason for the psychologist’s call. Id. at 174.
Similarly, the individual’s current domestic violence counselor informed the psychologist that he
knew of no other incidents of domestic violence in the individual’s history, aside from the 2017
incident with the ex-wife. Id. The psychologist additionally pointed out that the individual’s
pastoral counselor was unaware of any previous criminal history or incidents of domestic violence.
Id. at 175. She explained that this lack of disclosure was a significant concern because, in order for
“therapy or counseling to be effective, the person has to be truthful, and without that, the
counselor…can’t come to know the person well enough to provide the most effective treatment.”
Id. at 185.
With regard to whether the individual’s testimony at the hearing would change any of her
conclusions, the psychologist stated that she did not observe anything at the hearing that would
convince her that the individual has a sufficient understanding such that he could reasonably change
his behavior. Id. at 175, 179. Furthermore, she noted that the current domestic violence program
that the individual is attending is not a treatment program, but solely a psychoeducational program.
Id. She stated that such a program was “not a sufficient condition for people to make…reliable,
lasting changes.” Id. at 176. As such, she opined that the individual has not been adequately treated,
and that there exists a moderate risk of recurrence. Id. at 179.
A. Guideline J
Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness as it calls
into question a person’s ability or wiliness to comply with laws, rules, and regulations. Guideline J at ¶
30. 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 casts doubt on the individual’s judgment,
reliability, or trustworthiness can raise a security concern under Guideline J and be disqualifying. Id. at
¶ 31(a). A disqualifying condition under Guideline J need not require a formal charge, prosecution, or
conviction as evidence of criminal conduct may raise a security concern. Id. at ¶ 31(b). Furthermore,
currently being on probation, or violation of that probation, could raise a security concern and be
disqualifying under Guideline J. Id. at ¶¶ 31(c)(d).
It may be possible to mitigate such concerns if an individual can show, in relevant part, that: (1) so
much time has elapsed since the criminal behavior happened, or it happened under such unusual
circumstances, that it is unlikely recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment; or (2) there is evidence of successful rehabilitation, including, but
not limited to, the passage of time without recurrence of criminal activity or compliance with the terms
of probation. See id. at ¶¶ 32(a)(d).
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Here, the individual’s history reflects a pattern of criminal activity spanning back over 30 years. It is
apparent that the extent of the individual’s criminal activity is unknown as the individual admitted to
an undocumented incident in which he pushed his wife in frustration, and she was injured. Furthermore,
the individual is currently on probation and admitted to repeatedly violating that probation by having
regular contact with his ex-wife. Although the individual is participating in a domestic violence
prevention program and shows consistent attendance and progress, the individual has received help for
his behavior in the past (an anger management program in 2001, counseling in 2015 focused on martial
problems and verbal abuse, and additional counseling in 2016 after he pushed his wife), and yet, the
individual appears to have been unaffected by those efforts, continuing to engage in violence and
abusive behavior.
As such, I cannot determine that the individual has either been successfully rehabilitated or that his
criminal conduct occurred under such unusual circumstances that is unlikely to recur. Further, I cannot
determine that the individual’s pattern of behavior does not cast doubt on his reliability, trustworthiness,
or good judgment. Accordingly, I find that the security concerns under Guideline J have not been
resolved.
B. Guideline I
Certain personality conditions can impair judgment, reliability, or trustworthiness. See Guideline I
at ¶ 27. An opinion by a duly qualified mental health profession that an individual has a condition
that may impair judgment, stability, or trustworthiness can serve as a disqualifying condition for a
security clearance. Id. at ¶ 28(b). A recent opinion by a duly qualified mental health professional
employed by, or acceptable to and approved by, the U.S. Government that the individual’s previous
condition is under control or in remission, and has a low probably of recurrence or exacerbation
could potentially mitigate the security concern. Id. at ¶ 29(c).
Here, although the individual is enrolled in a domestic violence prevention program, he did not
enroll in such a program voluntarily, but did so at the order of the court. See id. at ¶ 29(b).
Furthermore, he is not attending regular and consistent voluntary counseling with his pastoral
counselor. See id. at ¶ 29(a). The psychologist noted that in spite of his participation in counseling
and education, the individual had not been providing a complete and honest history of his jealousy
and domestic violence to his treatment providers, and as such, he is inhibited from receiving
effective treatment. Tr. 175, 185. Further, she noted that the individual was not enrolled in an
appropriate treatment program for his diagnoses. Id. at 174-176. The psychologist testified that the
individual has not been adequately treated and is still at a moderate risk of his violent behavior
recurring. Id. at 179; see Guideline I at ¶ 29(c). As such, I find that the security concerns under
Guideline I have not been resolved.
VI. Conclusion
After considering all of 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 have found that the individual has not brought forth sufficient evidence to resolve the
security concerns associated with Guidelines I or J. Accordingly, I have determined that the
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individual’s access authorization should not 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.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals