PSH-18-0052

*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: July 11, 2018 ) Case No.: PSH-18-0052
)
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Issued: September 14, 2018
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Administrative Judge Decision
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Kimberly Jenkins-Chapman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the United States 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.”1 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) (the
Guidelines), I conclude that the Individual’s access authorization should not be restored.
I. BACKGROUND
A DOE contractor employs the Individual in a position that requires him to hold a security
clearance. In January 2018, the Individual informed the Local Security Office (LSO) that a Bench
Warrant had been issued for his arrest because he had failed to appear for a criminal court
proceeding. Based on the record developed by the Individual’s previous Personnel Security
Interviews (PSI) with Office of Personnel Management investigators and other information
contained in his file, the LSO determined that the record raised unresolved security concerns.
Therefore, the LSO informed the Individual, in a Notification Letter dated May 18, 2018
(“Notification Letter”), that it possessed reliable information that created substantial doubt
regarding the Individual’s 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 J, Criminal Conduct.”
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
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The Individual exercised his right to request an administrative review hearing pursuant to 10
C.F.R. Part 710. The Director of the Office of Hearings and Appeals (OHA) appointed me as the
Administrative Judge in the case, and I subsequently conducted an administrative hearing in the
matter. At the hearing, the DOE introduced nineteen numbered exhibits (Exs. 1–19). The
Individual introduced five exhibits (Exs. A-E) into the record and presented his own testimony.
The hearing transcript will be cited as “Tr.” followed by the relevant page number.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY
CONCERNS
The LSO cited Guideline J as the basis for denying the Individual a security clearance. Under
Guideline J, “[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.” Id. at ¶ 30. The Notification Letter asserted that: (1) in 2018,
the Individual received a bench warrant for failure to appear (FTA) at a scheduled court date; (2)
in 2016, the Individual was arrested for, and later charged with, Aggravated Battery Against a
Household Member (Great Bodily Harm) and Battery Against a Household Member (collectively
“Felony Battery”); (3) between 2015 and 2016, the Individual was cited for speeding four times;
(4) in 2012, the Individual was charged with Domestic Violence and Battery of a Household
Member; (5) in 2004, the Individual was charged with Battery Against a Household Member and
received a warrant for FTA; (6) in 1999, the Individual was charged with Possession of Marijuana;
and (7) the Individual used cocaine daily, and marijuana daily and monthly, from 1999 to 2006.
Ex. 1. These allegations support the invocation of Guideline J, and they raise serious security
concerns. Guideline J at ¶ 31(b).
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 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.
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§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence
to mitigate the security concerns at issue.
IV. FINDINGS OF FACT
The Individual has been alleged to have conducted several acts of domestic violence and has twice
received a bench warrant for failing to appear at his scheduled court hearings. The events that
resulted in his most recent criminal charge of Felony Battery occurred in 2016. On the date of the
incident, the Individual was in a physical altercation with his now-former girlfriend at their
residence. Ex. 12 at 3. His former girlfriend punched him several times, eventually scratching his
face; he punched her once in response, which cut her face, and then physically removed her from
the residence. Ex. 18 at 225-27. The Individual believed that the responding officer exaggerated
the damage to his former girlfriend’s face by characterizing it as lacerated with heavy bleeding.
Id. at 229. As a result of the incident, the Individual was arrested and initially charged with
misdemeanor Battery Against a Household Member. Ex. 12 at 3. However, the case was later
dismissed and re-charged as Felony Battery. Ex. 8 at 7. The Individual was scheduled to be at a
preliminary hearing on the Felony Battery charge, but failed to appear. Ex. 8 at 7. Consequently,
the court issued a Bench Warrant for his arrest. Id. The Felony Battery charge is still pending.
The Individual was also charged with domestic violence in 2012 and 2004 for altercations he had
with his ex-wife. In 2012, the Individual and his ex-wife were separated, and the Individual went
to their home in an attempt to reconcile. Ex. 18 at 160. During the visit, his ex-wife left with their
children, and the Individual remained in the residence alone. Id. While alone, the Individual
walked around the home while smoking and drinking, and at some point realized that a fire had
started from the ash of his cigarette. Id. at 160-61, 167. The Individual was able to extinguish the
flames, but the police and the fire department responded and conducted an investigation. Id. at
162. The Individual’s ex-wife wanted to obtain a restraining order, and she told the investigating
detective that the Individual had pushed her before she left him alone in the home. Id. at 163. The
Individual believes that the detective told her to say he assaulted her in order to obtain a restraining
order. Id. at 163-64. After the fire investigation was completed, the investigator believed that the
Individual was the source of the fire, but the Individual was never charged due to a lack of
evidence. Ex. 18 at 171. The Individual was charged with Domestic Violence and Battery on a
Household Member as a result of the incident. Ex. 17 at 17-19.2 The charges were later dismissed.
Id. at 18.
In 2004, the Individual was charged with Battery Against a Household Member after he and his
ex-wife got into an argument over dinner. Ex. 18 at 184. The Individual came home after work,
realized dinner was not finished as promised, and called her “worthless.” Ex. 18 at 180. He stated
that his ex-wife became very upset after that statement, attacked him and slapped him in the face.
Id. at 177. In response, he hit her on the cheek trying to push her away. Id. at 177. The Individual
was charged, and he subsequently failed to appear for a court hearing because he was afraid of
going to jail. Id. at 182. The court issued a warrant, and the warrant remained outstanding for three
years before he turned himself in and served ten days for the FTA as a result. Id. at 183-84. The
2 In the 2016 PSI, the Individual stated that he was never charged as a result of the incident that occurred in 2012. Ex.
18 at 172.
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Individual also participated in domestic violence intervention group counseling. Id. at 181. The
2004 battery charge was dismissed. Id. at 184.
At the hearing, the Individual asserted that in each above incident, he was not the aggressor and
applied force in order to repel attacks. See e.g. Tr. at 15, 22, 27, 31, 32, 49. As a result of the 2004
incident, he participated in a six month intervention program in which he talked about anger
management and received group therapy; however, he felt that he did not belong in the group
therapy because he merely pushed his former girlfriend to avoid her attacks. Id. at 20. Furthermore,
the Individual explained that he and his ex-wife remain friends and share joint custody of their
children. Id. at 46.
With respect to the 2016 incident, the Individual explained that he participated in five sessions of
counseling where he learned how to identify red flags in potential romantic partners. Id. at 49. He
also learned how to avoid verbal and physical altercations and realized that, in the past, he “pushed
people’s buttons.” Id. Since these incidents, he has focused on his family and he avoids problems
by spending his free time with his children. Id. at 62.
With respect to the 2018 FTA, the Individual explained that he missed the scheduled hearing
because neither he nor his attorney received notice. Id. at 41. He has since fired his attorney, and
he checks online to make sure he does not miss any future hearings. Id. at 43. And while his Felony
Battery case is still active, he is not aware of any pending hearings or trial dates. Id. at 45.
The Individual also engaged in criminal conduct separate from allegations of domestic violence.
Between 2015 and 2016, the Individual was cited for speeding on four separate occasions. Ex. 17
at 20-21. Also, in 1999, the Individual was charged with Possession of Marijuana. Ex. 15 at 37.
Notwithstanding the possession charge, the Individual continued to use marijuana daily or monthly
until 2006. Ex. 14 at 4. He also used cocaine daily during the same period, and he estimated that
he used both substances 2,555 times. Ex. 16 at 43.
At the hearing, the Individual explained that he took care of the fines associated with his speeding
citations and that he has not been stopped for speeding since 2016. Tr. at 14. He also explained
that his last two speeding tickets resulted from being distracted. Id. Regarding his past drug use,
the Individual explained that he has since changed his life, and has not used drugs since 2006. Id.
at 54. Specifically, he testified that he was going through “a phase in life” where he was hanging
out with the wrong crowd. Tr. at 9. He testified that he decided that he no longer wanted “to live
that life,” and “ever since then [he’s] been clean.” Id. He was fifteen years old at the time of the
Possession of Marijuana charge. Id. at 9, 10. The Individual further testified that he no longer
associates with the people related to his drug use. Id. at 11.
V. ANALYSIS
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual and his witnesses at the hearing. In resolving the
question of the Individual’s eligibility for access authorization, I have been guided by the
applicable factors prescribed in 10 C.F.R. § 710.7(c) and the Adjudicative Guidelines. After due
deliberation, I have determined that the Individual’s security clearance should not be restored at
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this time. I cannot find that restoring the individual a security clearance will not endanger the
common defense and security, and that it 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.
Under Adjudicative Guideline J, a disqualifying concern may be raised by “[e]vidence (including,
but not limited to, a credible allegation, an admission, and matters of official record) of criminal
conduct, regardless of whether the individual was formally charged, prosecuted, or convicted.”
Adjudicative Guidelines at ¶ 31 (b). The evidence in this case demonstrates that the Individual has
been cited, charged with, and admitted to several instances of criminal conduct. Putting aside his
recent speeding infractions and his past history of daily narcotic use, the Individual has failed to
appear at criminal court to face serious charges and he has been involved in several physical
altercations with romantic partners which, in every instance, resulted in criminal charges. In
addition, the Individual is currently facing felony criminal charges in state court for which he
recently failed to appear.3
Guideline J provides (in relevant part) that security concerns arising from criminal conduct can be
mitigated when: “(a) [s]o much time has elapsed since the criminal behavior happened, or it
happened under such unusual circumstances, that it is unlikely to recur and does not cast doubt on
the individual’s reliability, trustworthiness, or good judgment”; there is “(c) no reliable evidence
to support that the individual committed the offense”; and “(d) there is evidence of successful
rehabilitation; including, but not limited to, the passage of time without recurrence of criminal
activity . . . .” Adjudicative Guidelines at ¶ 32 (a), (c), (d). In this case, the evidence does not allow
me to find that the Individual has mitigated the security concerns related to his criminal conduct
based on the passage of time. The criminal charges are recent. The Individual’s behavior that
resulted in Felony Battery charges occurred merely two years ago, and the charges are still
pending. Furthermore, he failed to appear to a hearing less than a year ago. Additionally, the
Individual’s conduct does not appear to be unusual; the Individual has been involved in at least
two other similar physical incidents with romantic partners, and he has failed to appear in court
once before out of fear of going to jail. Consequently, it does not appear unlikely that similar
circumstances will recur.
Furthermore, I find that there is reliable evidence to support that the Individual committed the
offenses. The Individual’s testimony and the credible evidence contained in the record in this case
demonstrates that the Individual committed the various offenses. He admitted making statements
that contributed to the cited domestic arguments which resulted in his use of physical force and
subsequent criminal charges, and he admitted to failing to appear in court, once intentionally.
Finally, I find that the Individual has not demonstrated successful rehabilitation. While the
Individual’s illegal drug use may have occurred over a decade in the past, which is arguably
mitigated by the passage of time, the recency and severity of his remaining criminal conduct
preclude a finding that he is successfully rehabilitated due to the passage of time. I find that the
evidence in this case establishes that the Individual has committed criminal offenses which provide
a continuing basis for concern.
3 Failing to appear for a criminal proceeding is a misdemeanor in the jurisdiction in which the Individual failed to
appear.
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As stated above, it is the Individual’s burden to come forward with evidence to convince me that
restoring his access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” Based on the foregoing, I conclude that the Individual
has not resolved the security concerns associated with Adjudicative Guideline J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
the DOE that raised security concerns under Guidelines J. After considering all of the relevant
information, favorable and unfavorable, in a comprehensive, common-sense manner, including
weighing all of the testimony and other evidence presented at the hearing, I find that the Individual
has not brought forth sufficient evidence to resolve the security concerns set forth in the
Notification Letter. Accordingly, I have determined that the Individual’s access authorization
should not be restored. Either party may seek review of this Decision by an Appeal Panel pursuant
to 10 C.F.R. § 710.28.
Kimberly Jenkins-Chapman
Administrative Judge
Office of Hearings and Appeals