PSH-18-0073

*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: October 11, 2018 ) Case No.: PSH-18-0073
)
__________________________________________)
Issued: January 24, 2019
__________________________
Administrative Judge Decision
__________________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 be granted.
I. BACKGROUND
The Individual is employed by a DOE Contractor in a position that requires him to hold a security
clearance. In 2015, the Individual applied for a DOE security clearance and disclosed that he had
used marijuana from June 1981 to September 2012 and had numerous criminal charges, including
six arrests for Driving Under the Influence (DUI). During a Personnel Security Interview (PSI) in
September 2016, the Individual admitted that, in addition to the criminal charges listed on the
Questionnaire for National Security Positions (QNSP), he had failed to include three additional
DUI arrests.
The Local Security Office (LSO) began 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.
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.
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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 October 11, 2018. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d),
(e) and (g), the Individual presented the testimony of one witness and testified on his own behalf.
See Transcript of Hearing, Case No. PSH-18-0073 (hereinafter cited as “Tr.”). The LSO
submitted 12 exhibits, marked as Exhibits 1 through 12 (hereinafter cited as “Ex.”). The Individual
submitted one exhibit, marked as Exhibit A.
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, H, 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).
Guideline E relates to conduct involving questionable judgment, lack of candor, or unwillingness
to comply with rules and regulations, which raises questions about an individual’s reliability,
trustworthiness, and ability to protect classified information. Any failure to provide truthful and
candid answers during the security clearance process is of particular concern. See Adjudicative
Guidelines at ¶ 15. With respect to Guideline E, the LSO cited the Individual’s failure to include
three DUI arrests, from 1992, 1993, and 1994, on his QNSP. Ex. 3 at 4. Given these apparent
failures to disclose the above referenced arrests, the LSO had sufficient grounds to invoke
Guideline E.
Guideline H relates to an individual’s drug involvement, which raises questions about an
individual’s reliability and trustworthiness. Guideline H at ¶ 14. In citing Guideline H, the LSO
cited that the Individual admitted he used marijuana between June 1981 and September 2012;
failed a random drug test while on probation in 1998; and was charged with Drug
Possession/Paraphernalia in 2012. Ex. 3 at 5. On review, I find that the LSO had sufficient
grounds to reference Guideline H in light of the Individual’s admissions regarding illegal drug use.
Criminal activity creates doubt about a person’s judgment, reliability, and trustworthiness and by
its very nature calls into question a person’s ability or willingness to comply with laws, rules, and
regulations. Guideline J at ¶ 30. With respect to Guideline J, the Notification Letter listed the
Individual’s six arrests for DUI, one of which also involved Drug Possession/Paraphernalia; along
with his arrests for Telephone Harassment; Assault, Endangering Children and Violation of
Protection Order; and two charges of Driving on a Suspended License. Ex. 3 at 5—6. The
Individual’s documented history of arrests supports the LSO’s determination that Guideline J is
applicable in the present case.
III. REGULATORY STANDARDS
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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.
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 alleged in the Notification Letter. Tr. at 68. As such, I
adopt the factual allegations in the Notification Letter as my factual findings in this case. In
addition to testifying himself, the Individual presented one character witnesses, his co-worker who
is also the union steward. Tr. at 8.
The Individual’s co-worker testified that the Individual has had no written or verbal warnings
issued to him at work. Tr. at 11. The co-worker also testified that the Individual testified against
another employee in a disciplinary action of that employee. Id. at 13. According to the co-worker,
the Individual chose to “do the right thing” and was an intricate part of the discipline process,
while other employees ignored the situation. Id.
During the hearing, the Individual testified that he failed to list the three DUI arrests on his QNSP
because he believed that by listing the 1998 arrest as a fourth offense2, he was including the other
three DUI arrests. Tr. at 21. “When I . . . put down the fourth offense felony DUI I had in ’98, I
thought they would understand that I was including all the other three before that.” Id. His
statement at the hearing confirms what he said during the PSI. “I'm thinking because the, the
2 The Individual specifically listed the charge as “4TH/MORE Driving under the influence of alcohol/drugs.” Ex. 9
at 29.
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fourth offense felony, it covers all them. . . . [T]here is no reason why I wouldn't, when I put that
one on there.” Ex. 10 at 11.
The Individual has two drug-related criminal charges and admitted on the QNSP and during the
PSI that he used marijuana between 1981 and 2012. Ex. 3 at 5; Ex. 10 at 104. At the hearing, the
Individual testified that he used marijuana occasionally while he was in college, but not when he
was in the army or while he worked at another DOE site. Tr. at 27. The Individual last used
marijuana in 2012. Id.
The Individual testified that the other non-alcohol related criminal charges occurred during his
divorce. Tr. at 25. The Individual’s ex-wife submitted a letter admitting that she did request a
restraining order and taped a telephone conversation in order to have him charged during their
divorce. Ex. A. She also admitted that she made “many ugly phone calls to him” as well. Id. She
concluded that the Individual “is a good man who was going through a lot at the time of these
charges.” Id. The charges for driving on a suspended license occurred in November 2004 and
March 2005 when the Individual was behind on his child support. Tr. at 25. The Individual
claimed that his last DUI occurred after a friend’s funeral. Tr. at 27. His girlfriend was supposed
to drive him home after the funeral, but she failed to arrive. Id.
V. ANALYSIS
The issue before me is whether the Individual, at the time of the 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. “Any doubt concerning personnel being considered
for access for national security eligibility will be resolved in favor of the national security.”
Adjudicative Guidelines at ¶ 2(b). In reaching this decision, I have drawn only those conclusions
that are reasonable, logical, and based on the evidence contained in the record. Because of the
strong presumption against granting security clearances, I must deny granting if I am not convinced
that the LSO’s security concerns have been mitigated such that granting the Individual’s clearance
is not an unacceptable risk to national security.
A. Guideline E
Conduct 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 or sensitive information. Of special interest is any failure to provide
truthful and candid answers during national security investigative or adjudicative processes.
Adjudicative Guidelines ¶ 15. Guideline E provides that the following conditions may mitigate
security concerns:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts (id. at ¶ 17(a));
(c) the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
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recur and does not cast doubt on the individual's reliability, trustworthiness, or good
judgment (id. at ¶ 17(c)).
The Individual failed to include three DUI arrests on his QNSP. At his PSI and at the hearing, the
Individual asserted that he did not intentionally omit the three DUI arrests from his QNSP. He
declared that by including his fourth DUI, and listing it as a fourth offense, he believed that “they
would understand that I was including all the other three before that.” Tr. at 21. The Individual
included all his other arrests on the form. His reporting of a fourth arrest for DUI indicates to me
that he was not attempting to hide his prior DUI arrests from the LSO. Further, his inclusion of the
other arrests supports my finding that the Individual was not trying to hide his prior criminal
history. I found the Individual to be credible in his testimony regarding his omissions from the
form. For the foregoing reasons, I find that the Individual has mitigated the Guideline E security
concerns.
B. Guideline H
The illegal use of controlled substances can raise questions about an individual's reliability and
trustworthiness, both because such behavior may lead to physical or psychological impairment and
because it raises questions about a person's ability or willingness to comply with laws, rules, and
regulations. Adjudicative Guidelines ¶ 24. Guideline H provides that the following condition may
mitigate security concerns:
(a) the behavior happened so long ago, was so infrequent, or happened under such
circumstances that it is unlikely to recur or does not cast doubt on the individual's
current reliability, trustworthiness, or good judgment (id. at 26(a)).
The Individual admitted that he used marijuana between 1981 and 2012. In addition, he admitted
that he was arrested on two occasions for drug possession or paraphernalia and failed a random
drug test while on probation. The Individual’s last drug use or possession arrest occurred in 2012,
over six years prior to the date of the hearing, thus satisfying the condition above requiring a
temporal distance. The record is devoid of any evidence of any current drug usage. Further, the
LSO sent the Individual to a consulting Psychologist for an evaluation regarding the Individual’s
alcohol use. Ex. 11. The Psychologist found that one of the tests he ran showed the Individual’s
“Drug Problems Scale (DRG=55 T) was non-significant.” Id. at 9. Due to the passage of time, I
find that the Individual has mitigated the Guideline H security concerns.
C. Guideline J
Criminal activity creates doubt about a person's judgment, reliability, and trustworthiness because
it calls into question a person’s ability or willingness to comply with laws, rules, and regulations.
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Adjudicative Guidelines ¶ 30. Guideline J provides that the following conditions may mitigate
security concerns:
(a) so 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 (id. at ¶ 32(a));
(d) there is evidence of successful rehabilitation; including, but not limited to, the
passage of time without recurrence of criminal activity, restitution, compliance with
the terms of parole or probation, job training or higher education, good employment
record, or constructive community involvement (id. at ¶ 32(d)).
The Individual admitted to his numerous arrests, including six DUI arrests; Telephone Harassment;
Assault, Endangering Children and Violation of Protection Order; and a two charges for Driving
on a Suspended License. Notwithstanding his alcohol-related arrests, the Individual testified that
his other arrests occurred during, and were related to, his divorce.3 His ex-wife confirmed his
recollection. Further, his divorce is now complete. The Individual’s last alcohol-related arrest
occurred in 2012. As stated above, the LSO sent the Individual to a consulting Psychologist for
an evaluation regarding the Individual’s alcohol use. Ex. 11. In his report, the Psychologist opined
that the Individual previously suffered from Alcohol Abuse but stated that, at the time of the
evaluation, the Individual did not demonstrate current symptoms of Alcohol Use Disorder. Id. at
11—12. The Individual’s co-worker confirmed that he is a great employee with no written or
verbal warnings. Due to the passage of time, the fact that his arrests appear unlikely to recur, and
the co-worker’s testimony regarding his good employment record, I find that the Individual has
mitigated the Guideline J security concerns.
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, H, and
J of the Adjudicative Guidelines. I further find that the Individual has succeeded in fully resolving
those concerns. Therefore, I conclude that granting 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 grant access authorization
to the Individual at this time.
3 The Telephone Harassment charge originated when he called his ex-wife after speaking with her and her “cussing”
him out. Tr. at 22. He left a recorded message, which she kept and played for the judge. Id. In her letter, she stated
that she wanted to make things difficult for him and decided to file charges and ask for a restraining order. Ex. A.
The child endangerment charge occurred after the restraining order was in place. After appearing in court, the
Individual was approached by his ex-wife’s boyfriend who attempted to fight the Individual. Bystanders told the
boyfriend to leave. Later when the Individual returned his son to his ex-wife’s house, his son left a duffle bag in the
car. When the Individual exited the car to return the duffle bag, the ex-wife’s boyfriend came outside and confronted
the Individual again attempting to start a fight. Tr. at 23-24. In her correspondence, the ex-wife accepted blame for
causing the Individual pain regarding the various charges she filed. Ex. A.
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The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals