PSH-20-0035

*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: January 30, 2020 ) Case No.: PSH-20-0035
)
__________________________________________)
Issued: July 13, 2020
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “the Individual”) to
hold an access authorization 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 of 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) (Adjudicative Guidelines), I conclude that
the Individual’s access authorization should not be granted.
I. Background
The Individual is an applicant for a position that requires him to hold a security clearance. The
Individual completed and signed a Questionnaire for National Security Positions (QNSP) in
October 2018. Ex. 8. In response to the QNSP’s financial questions, the Individual indicated that,
in the last seven years, he suffered financial difficulties. Id. at 43-44. Specifically, he noted that he
was over 120 days delinquent on particular debts; particular unpaid bills had been turned over to
collection agencies; and certain accounts had been charged off due to his failure to pay. Id. at 44-
49. Subsequently, the National Background Investigations Bureau (NBIB) conducted an interview
with the Individual in January 2019. Later, the Local Security Office (LSO) asked the Individual
to complete a Letter of Interrogatory (LOI), dated June 2019. Ex. 1; Ex. 7. Due to unresolved
security concerns, arising in part from the Individual’s indebtedness, the LSO informed the
Individual, in a Notification Letter, dated December 6, 2019 (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
1
Access to authorization is defined as “an administrative determination that an individual is eligible for access to
classified mater 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 to authorization or security clearance.
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derogatory information raised security concerns under Guideline F (Financial Considerations) and
Guideline J (Criminal Conduct) of the Adjudicative Guidelines. Ex. 1.
Upon receipt of the Notification Letter, the Individual exercised his right under 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 ten numbered
exhibits (Exhibits 1-10) into the record. The Individual submitted nine exhibits (Exhibits A-I), and
presented the testimony of two witnesses, including himself. The exhibits will be cited in this
Decision as “Ex.” followed by the appropriate numeric designation. The hearing transcript in the
case will be cited as “Tr.” followed by the relevant page number.
II. 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.
§ 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 F and J of the Adjudicative Guidelines. Guideline F relates
to security risks arising from financial concerns. Conduct like a “[f]ailure to live within one’s
means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of
judgement, or unwillingness to abide by rules and regulations, all of which can raise questions
about and individual’s reliability, trustworthiness, and ability to protect classified or sensitive
information.” Guideline F at ¶ 18. As support for citing Guideline F, the LSO relied upon the fact
that the Individual has two outstanding charge off accounts totaling $29,955 and three medical
collection accounts totaling $2,507. Ex. 1. The LSO also relied on the fact that the Individual's
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answers to questions posed by investigators and on the LOI, with regard to the resolution of this
financial situation, were inconsistent. Id.
Guideline J relates to security risks arising from criminal conduct. Criminal conduct, “calls into
question a person’s ability or willingness to comply with laws, rules, and regulations.” Guideline J
at ¶ 30. In support of the use of Guideline J, the LSO cited ten separate instances of criminal conduct
between the years 2006 and 2017. Ex. 1. The pertinent reported instances are listed chronologically
as follows:
(1) September 2006: Arrested and charged with Aggravated Driving Under the
Influence of Intoxicating Liquor and/or Drugs (DUI);
(2) May 2007: Arrested and charged with Unlawful use of License and Driving
While License Suspended or Revoked;
(3) 2008 or 2009: An ex-girlfriend filed a restraining order against him for
sending harassing text messages;
(4) December 2009: Law enforcement responded after the Individual’s girlfriend
accused him of harassing her by phone;
(5) May 2011: Arrested and charged with Aggravated DUI;
(6) November 2011: Arrested and charged with Battery Upon a Police Officer
and Resisting, Evading, or Obstructing an Officer;
(7) December 2011: Arrested and charged with Driving While License
Suspended or Revoked;
(8) 2011 or 2012: Ex-Wife filed a restraining order against the Individual as the
result of domestic abuse;
(9) August 2016: Arrested and charged with Battery Against a Household
Member, based on the allegation that he hit his wife;
(10) August 2017: Law enforcement responded after the Individual’s girlfriend
alleged that he hit her.
Ex. 1.
IV. Findings of Fact
I have carefully considered the totality of the record in reaching the findings of fact set forth below.
At the hearing, the Individual presented his own testimony and that of his father.
A. Charge Off Accounts
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The Summary of Security Concerns listed two charge off accounts, totaling $29,955. Ex. 1. The
first was attributable to a purchase from a jewelry store, in the amount of $1,303, and the second
was for a motorcycle purchase, in the amount of $ 28,652. Id. At the hearing, the Individual testified
that the charge offs for these two purchases were the result of his loss of employment. Tr. at 10,
14. The Individual explained that he purchased a ring for his girlfriend at the jewelry store, but
subsequently lost his job. Id. at 10. He stated that he was responsible for five car payments during
this time, which he acknowledged was “kind of irresponsible,” and he “had to prioritize the things
[he] wanted and the things [he] didn’t.” Id. at 11. The Individual explained that once he obtained
employment again, he did not make any attempt to pay the debt for the ring back because he was
delinquent on other debts. Id.
During his examination of the Individual, the DOE attorney noted that during the January 2019
NBIB interview, the Individual stated that he had created a payment plan with the jewelry creditor
in late 2018, but then, in the June 2019 LOI, the Individual indicated that he had not made any
payments. Id. at 33; Ex. 1. The Individual explained that the concern about the inconsistencies in
his statements arose because, although he had set up a payment plan with the creditor, he did not
make any payments in accordance with the plan. Id. at 34. Instead, he settled with the creditor for
$522, which he paid in January 2020. Id. at 12, 34; Ex. B., Ex. E; see Ex. H.
With regard to the motorcycle, the Individual explained that he purchased it in May 2017 when he
felt that he was financially secure. Tr. at 13. He stated that he made the motorcycle payments from
May-September, but then his “dogs ate” the motorcycle. Id. At that time, he took the motorcycle
to be repaired,2 but subsequently lost his job and “put the bike on the back burner.” Id. at 14. When
the creditor began contacting him for payment, he stated that he wanted the creditor to recover the
motorcycle from the repair shop, sell it, and then charge him for the remainder of what was owed.
Id. The Individual stated that he did not feel that he should be responsible for the full price of the
motorcycle because he did not have it in his possession, and he did not “feel like [he] should have
to pay for a bike” that he did not have. Id. at 16.
The Individual noted that, as of the hearing, he had not settled with the creditor. Id. at 14. He
explained that, because the motorcycle had been charged off, he would either have to settle with
the creditor for $15,000 or begin to make monthly payments again. Id. at 14-15. He stated that he
was unable to afford either of these options. Id. at 14-15. The Individual testified that he felt that
the creditor asking him to pay for the full amount owed on the motorcycle “seem[ed] like robbery.”
Id. at 17. He clarified, “I don’t really feel like I should have to pay for [it] – it’s not like I stole it
from them.” Id.
The Summary of Security Concerns noted that, in completing the October 2018 QNSP, the
Individual stated that he would contact the motorcycle creditor to arrange payment; however, in
the June 2019 LOI, the Individual stated that he never indicated that he would contact the creditor,
and he had no plans to resolve the debt. Ex. 1. When the DOE attorney asked the Individual to
explain the inconsistent statements, the Individual testified that he has “gone back and forth” trying
2 The Individual later explained that he paid the repair shop for the work performed on the motorcycle. Tr. at 17.
However, upon further questioning, the Individual clarified that he did not pay the repair shop “physical money;”
instead, the repair shop retained the motorcycle, and as such the Individual and the repair shop were “square.” Id. at
18.
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to decide whether he should pay the creditor. Tr. at 31. However, he ultimately reasoned that he
should not have to pay for something he does not have anymore. Id. The Individual explained that
the inconsistent statements between the QNSP and the LOI may have been the result of “a
misunderstanding on [his] behalf,” but he clarified that he did contact the creditor to “tell them
where the bike was” and to offer to pay for the remaining costs of motorcycle after the creditor
retrieved it and sold it. Id. at 32
B. Medical Collection Accounts
The Summary of Security Concerns listed three medical collection accounts, totaling $2,507,
consisting of debts in the amounts of: (1) $1,371, (2) $1,065 and (3) $71. Ex. 1. With regard to the
first debt, the Individual explained that the debt occurred in 2016; however, he was unaware of the
debt prior to receiving the Summary of Security Concerns. Id. at 19-21. He testified that he did not
know what the bill was related to, that he had medical insurance in 2016, and that he was unsure
why his medical insurance did not pay the bill. Id. The Individual explained that he has not
contacted his medical insurance, but instead, he has just been making payments to the creditor. Id.
The Individual noted that he created a payment plan with the creditor, and has been paying $50 a
month for three months.3 Id. at 19-20.
The Individual went on to explain that the second debt of $1,065 was due to the same creditor as
the first debt, and as such, the creditor “rolled both” debts together. Id. at 23. The Individual noted
that the $50 monthly payment is applied to the sum of both debts. Id. However, he then clarified
that the creditor never provided confirmation that the debts had been combined, and a
representative of the creditor indicated that the $50 payments will be applied to the $1,371 balance
as it was the first account to become delinquent.4 Id. at 25.
The Individual admitted that, although he indicated on his October 2018 QNSP that he would
contact this creditor to learn more about the source of the debts, he had not done so by his January
2019 NBIB interview or his June 2019 LOI. Id. at 35. He explained that he did not contact the
creditor as he said he would because he could not afford any additional payments at the time. Id.
Turning to the last debt for $71, the Individual testified that, although he stated in the NBIB
interview that he planned on looking into the debt, he did not know how to contact the creditor. Id.
at 36. However upon examining Exhibit 6 during the hearing, the Individual was able to locate a
P.O. Box address for the creditor. Id. at 23. He stated that, if he were able to contact the creditor,
he would be able to make the $71 payment. Id.
C. Criminal Conduct
3 The Individual submitted Exhibit A, showing that a payment of $100 was made to this creditor. Tr. at 26. He explained
that he decided to pay for “two months right away.” Id.
4 The Individual’s testimony does not provide an entirely clear explanation of the circumstances surrounding the
combination of these two debts. See Tr. at 19-26. However, according to the Individual’s testimony and Exhibit A, it
is clear that he has at least made a payment of $100 to this creditor.
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In turning to the criminal conduct portion of the Summary of Security Concerns, the Individual
addressed the incidents in chronological order, beginning with the 2006 Aggravated DUI. Id. at 37.
The Individual testified that on the night he was arrested, he felt he had consumed too much alcohol,
but drove despite his alcohol consumption. Id. at 37-38. He stated that he was ordered by the court
to attend classes, but he did not feel that they helped him to reduce his alcohol consumption. Id. at
38.
The Individual went on to acknowledge that, in May 2007, he was driving on a revoked or
suspended license. Id. at 39.
With regard to the 2008 or 2009 restraining order, the Individual denied that he was sending his
ex-girlfriend harassing texts as she alleged. Id. at 38-39. The Individual explained that his ex-wife
“was always filing restraining orders” against him, and he believes that the ex-girlfriend “thought
it would be cool” to file the restraining orders because she “knew how much [he] hated it.” Id. at
40. He testified that the restraining order was never made permanent. Id. Then in December 2009,
the same ex-girlfriend alleged that the Individual was making harassing phone calls to her. Id. at
41. The Individual acknowledged that he was “trying to get some of his items back,” but stated that
he was not making harassing calls. Id. He clarified that he did not recall much about the incident.
Id.
Turning next to the May 2011 Aggravated DUI, the Individual stated that he could not recall, due
to his alcohol consumption, if the DUI was aggravated because he refused a breathalyzer or because
his blood-alcohol content (BAC) was over the legal limit. Id. at 42. Again, the Individual completed
court-ordered classes, but indicated that he did not receive any benefits from the classes. Id. at 42-
43. He also acknowledged that, in November 2011, he was arrested and charged with battery on a
peace officer and resisting, evading, or obstructing an officer. Id. at 43. The Individual explained
that he was intoxicated and became lost while trying to find his way to his hotel room. Id. at 43.
When law enforcement approached him and attempted to arrest him, the Individual testified that a
police officer put her finger inside his mouth, and he bit her. Id. at 44. Again, the Individual noted
that he did not recall the entirety of the event due to the level of his intoxication. Id.
The Individual testified that, in December 2011, he was arrested and charged with driving on a
revoked license. Id. at 45. He explained that he had an interlock device in his vehicle, but he had
not obtained the required interlock license. Id. Next, the Individual recalled that, in approximately
2011 or 2012, his ex-wife filed a restraining order against him for domestic abuse. Id. He noted
that his ex-wife had filed several restraining orders against him, and although he “never really hit
her as far as like punched, or kicked or slapped” her, he would engage in “shoving matches and
stuff like that.” Id. at 46. Later, in August 2016, the Individual stated that he pled guilty to Battery
Against a Household Member. Id. at 50; see Ex. 1. The Individual explained that, while driving
around with his children, he spotted his ex-wife and believed she was under the influence of
methamphetamines. Tr. at 47-48. He testified that he did not “slap her” as she claimed, but he “did
verbally abuse the f*** [obscenity] out of her.”5 Id. at 48.
5 As a result of this incident, the Individual testified that he was court-ordered to attend a four month outpatient
domestic abuse program. Tr. at 49. He clarified that although he did not complete the program, he completed the
portion that was ordered by the court. Id.
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The final instance of criminal conduct listed on the Summary of Security Concerns is an August
2017 incident in which law enforcement responded to an allegation that the Individual hit his
girlfriend. Ex. 1. The Individual stated that, on the night in question, he and his girlfriend were
highly intoxicated, and neither of them could recall whether he hit her or not. Tr. at 53. The
Individual acknowledged that his alcohol consumption has contributed to many of the problems in
his life, and as such, he has been abstaining from alcohol since August of 2019. Id. at 54
The Individual’s father testified on his behalf. Id. at 71. He stated that he has routine contact with
his son, and he described his son as “trustworthy” and “a man of his word.” Id. at 72, 74. He noted
that his son is a private person, and he is not privy to the details of the Individual’s financial
situation. Id. at 73. He explained that, although he has seen his son get angry, he has only witnessed
his son being verbally, but not physically, violent. Id. at 75.
V. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony presented 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 As an initial matter, I note that legitimate
security concerns exist as a result of the Individual’s financial situation and criminal history. After
due deliberation, I have determined that the Individual has not sufficiently mitigated the security
concerns noted by the LSO with regard to Guidelines F and J. 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). Therefore, I have determined
that the Individual’s security clearance should not be granted. The specific findings that I make in
support of this decision are discussed below.
A. Guideline F
An individual may be able to mitigate Guideline F security concerns by demonstrating that the
behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is
unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or
good judgment. Id. at ¶ 20(a). Additionally, an individual may be able to mitigate the security
concerns if the conditions that resulted in the financial problem were largely beyond the person’s
control and the person acted responsibly under the circumstances. Id. at ¶ 20(b). Further, if an
individual has initiated and is adhering to a good-faith effort to repay overdue creditors, an
individual may be able to mitigate a security concern. Id. at ¶ 20(d).
In the present case, the primary explanation the Individual provided for his debt was the loss of
employment. Tr. at 9-11. Although I recognize that the loss of his job was a circumstance that was
likely outside of the Individual’s control, the Individual acknowledged that he engaged in
irresponsible spending prior to the loss of his employment. Tr. at 11. Further, even after gaining
employment, the Individual testified that he did not believe he should have to pay for a motorcycle
he purchased, because it was no longer in his possession. However, the motorcycle was no longer
in his possession because, after the motorcycle was damaged by his dogs, he failed to pay the repair
shop that undertook the restoration, choosing instead to abandon it to the shop. To date, it appears
that the Individual fails to accept his responsibility to pay the creditor in full for the motorcycle he
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purchased; instead, he seeks to have the creditor look to the repair shop for redress. See Guideline
F ¶ 19(a)(b) (stating that an inability or an unwillingness to satisfy debts, regardless of ability to do
so, may raise a security concern and potentially disqualify an individual from holding a security
clearance). Further, with regard to his medical debts, the Individual demonstrated that he has
limited knowledge surrounding these debts. Although he did testify to establishing a payment plan
and provided evidence of a one-time $100 payment, I cannot find that this action is sufficient to
mitigate the security concern at issue. Contra id. at ¶ 20(a).
B. Guideline J
Guideline J security concerns may be mitigated 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. Guideline J at ¶ 32(a)(d).
In examining the Summary of Security Concerns and the Individual’s testimony, I recognize that
several of the instances of criminal conduct may have been the result of unfounded accusations. I
additionally note that alcohol was the cause of many of the events that led to the concerns related
to his criminal conduct, and the Individual claims he is now abstaining from alcohol.6 However,
the record demonstrates that the Individual has engaged in relationships and behaviors that resulted
in over a decade’s worth of activities that cast doubt on his judgment and his ability and willingness
to comply with rules and regulations. Contra Guideline J ¶ 30. Less than three years have elapsed
since law enforcement was last dispatched to a situation involving the Individual and less than one
year has elapsed since the Individual began abstaining from alcohol, which he acknowledged to be
the cause of much of his criminal conduct. Considering that the Individual has over a decade-long
history of engaging in behaviors that constitute criminal conduct, many of which involved alcohol,
I cannot find that sufficient time has elapsed or that the events occurred under such circumstances
that make them unlikely to recur. Accordingly, I find that the Individual has not mitigated the
Guideline J security concerns.
VI. CONCLUSION
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 have found that the Individual has not brought forth sufficient evidence to resolve
the security concerns associated with Guidelines F and J. Therefore, I cannot 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 not grant 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.
6 The Individual’s alcohol consumption was not raised as a security concern, pursuant to Guideline G, in the Summary
of Security Concerns. Ex. 1 As such, it will not be addressed herein.
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Katie Quintana
Administrative Judge
Office of Hearings and Appeals