PSH-21-0051

*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: April 29, 2021 ) Case No.: PSH-21-0051
)
__________________________________________)
Issued: July 29, 2021
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXX (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 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 the Electronic Questionnaires for Investigations Processing (e-
QIP) in December 2019. Ex. 4. In response to the e-QIP’s questions regarding his criminal history,
the Individual indicated that he had been imprisoned for a term exceeding one year, resulting from
a 2009 conviction of Assault on a Federal Officer. Id. at 52-53. The Individual also indicated that
he was convicted of Driving while Intoxicated (DWI) on several occasions.2 Id. at 54-55. Due to
unresolved security concerns, the LSO informed the Individual, in a 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 the Bond Amendment and Guideline J
(Criminal Conduct) of the Adjudicative Guidelines. Ex. 1.
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.
2 The convictions listed in the e-QIP to do not exactly correspond with the incidents of criminal conduct listed on the
Summary of Security Concerns. Ex. 1; Ex. 4 at 52-55.
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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 five numbered exhibits (Exhibits 1-5) into the record. The Individual submitted six
exhibits (Exhibits A-F) and presented the testimony of ten 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)
(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 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 Guideline J of the Adjudicative Guidelines and the Bond Amendment,
codified at 50 U.S.C. § 3343(c)(1)(A).
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 five separate instances of criminal
conduct between the years 2003 and 2010. Specifically, the LSO cited:
(1) A May 2010 arrest and charge of Resisting an Officer and Possession of a Weapon, which
resulted in 84 months of incarceration in Federal prison, followed by supervised probation
from April 2016 to September 2018;
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(2) Charges filed against the Individual in Federal court, in December 2009, for three counts of
Assaulting, Resisting, or Impeding Certain Officers or Employees, three counts of Aiding
and Abetting; and three counts of Using and Carrying a Firearm During and in Relation to
a Crime of Violence;
(3) A February 2006 arrest and charge of Aggravated Driving Under the Influence (DUI);
(4) An August 2005 arrest and charge of Unlawful Use of a License and No Proof of Financial
Responsibility;
(5) A June 2003 arrest and charge of a misdemeanor traffic offense and DUI. Ex. 1
The Bond Amendment states, in pertinent part, that an agency may refuse to grant or renew a
security clearance for an individual who “has been convicted in any court of the United States of a
crime, was sentenced to imprisonment for a term exceeding 1 year, and was incarcerated as a result
of that sentence for not less than one year.” 50 U.S.C. § 3343(c)(1)(A). The LSO cited that, as the
result of a May 2010 arrest and charge of Resisting an Officer and Possession of a Weapon, the
Individual was sentenced to 84 months of incarceration at a Federal Prison. Ex. 1. The Individual
was incarcerated from April 2011 to December 2015. In light of these facts, the LSO’s invocation
of security concerns under Guideline J and the Bond Amendment is justified.
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 9 other witnesses. The
Individual testified that the incident which resulted in him being sentenced to prison occurred in
January 2005, but he was not indicted until 2009.3 Tr. at 116; Ex. E. He noted that, around the time
of the incident, he was under significant stress as the result of a divorce and began consuming
alcohol as a coping mechanism. Tr. at 116. The Individual explained that, on the day of the incident,
he was intoxicated and socializing with a friend who began fighting with law enforcement, which
ultimately led to his arrest, albeit years later. Id. at 118, 121. The Individual testified that he pled
guilty to the charges as he realized that he “had done wrong.” Id. at 121. He stated that at the time
of the incident he “was angry” and “hanging around with bad people,” but he feels that he has taken
responsibility for his actions and does not want his life to turn in that direction again. Id. at 121-
122.
As a result of the Individual’s guilty plea, he served 84 months in a Federal prison. Id. at 124. He
stated that while he was in prison, he did not “want to be in there just wasting time,” so he
participated in painting, computer, and furniture building classes. Id. at 113. He also worked at the
prison building furniture. Id. As a result of the painting classes, he became a very skilled artist and
3 The date of the incident leading to the Individual’s incarceration is not listed in the Summary of Security Concerns
(SSC). Ex. 1. The dates on the SSC appear to correspond to the date the Individual was arrested, which was not until
May 2010, and the date of the indictment, which is incorrect according to official court documents. See Ex. 1 at I, II
(A-B); Ex. E.
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continues to paint to this day.4 Id. at 114. He explained that painting is a very therapeutic practice
for him and helps him to relax. Id. at 115.
Upon being released from prison, the Individual underwent supervised probation for “a little over
two years;” however, he was able to complete his probation early. Id. at 107, 124. He testified that
during his supervised probation, he engaged in a year of counseling, participated in an anger
management course, and completed an alcohol and drug rehabilitation course. Id. at 108. He
explained that these classes made him “see different [sic],” taught him about respect, and taught
him the negative consequences that can result from the use of drugs and alcohol. Id. at 108-109.
The Individual testified that since his release from prison, he has always maintained employment,
no longer becomes intoxicated or socializes with “bad people,” and has not engaged in any criminal
conduct.5 Id. at 107, 110, 122. He explained that he participates in “a lot of trainings” at the site
where he is employed and has never violated any security protocols. Id. at 111, 125. He also
described how he helps his community by participating in the restoration of a church and donating
materials. Id. at 111-1112.
Two of the Individual’s longtime friends testified on his behalf and stated that they have seen
“positive” and “tremendous” changes in the Individual since he was released from prison.6 Id. at
19, 94. Both witnesses noted that the Individual has removed negatively influential friends from
his life. Id. at 20, 94-95. The Individual’s significant other added that he “came back [from prison]
extremely positive [and v]ery determined on what he wanted to do with [their] lives.”7 Id. at 45.
She explained that the Individual built them a house and has been caring for her “110 percent”
through her cancer treatment. Id. at 46. She noted that the Individual helps her with church activities
in their community and has aided the community in donating materials for construction projects.
Id. at 49.
Regarding the Individual’s employment, his supervisor (Supervisor) and a deputy program director
(Director) at his employment site testified on his behalf. Id. at 52, 72. The Director testified that
the Individual has a “fantastic” work ethic and follows rules and regulations “without a doubt.” Id.
at 53. Specifically, the Director stated that the Individual “followed every rule we gave him” and
never “waivered from the safety requirements.” Id. at 54-55. The Supervisor confirmed the
Individual’s dedication to workplace procedures and explained that the Individual also completes
“lots of different trainings” at the worksite. Id. at 77. Both the Director and the Supervisor testified
that the Individual holds his peers accountable to the rules and regulations. Id. at 55. Specifically,
the Supervisor stated that the Individual “set some of the guys straight.” Id. at 74. Both witnesses
described the Individual as reliable and honest. Id. at 56, 72, 74.
4 The Individual submitted examples of his painting into the record, which clearly evidence the skills he obtained from
his classes while imprisoned. Ex. F.
5 All of this testimony was supported by that of his witnesses, including that of his supervisor and deputy program
director. See Tr. at 19-20, 30, 47, 49, 94.
6 One of the witnesses has known the Individual for approximately 20 years, and the other witness testified that he has
known the Individual for approximately 30 years. Tr. at 18, 81.
7 The Individual and his significant other met after the 2005 incident. Tr. at 42.
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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 criminal history. After due deliberation, I have
determined that the Individual has sufficiently mitigated the security concerns noted by the LSO
regarding Guideline J and the Bond Amendment. I find that granting the Individual’s DOE security
clearance will not endanger the common defense and security, and it 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 be granted. The specific findings that I make in support of this decision are
discussed below.
Given that the Guideline J and Bond Amendment concerns arise from the same conduct, I will
analyze them together. As stated above, the Bond Amendment disqualifies an individual from holding
a security clearance if that individual “has been convicted in any court of the United States of a crime,
was sentenced to imprisonment for a term exceeding 1 year, and was incarcerated as a result of that
sentence for not less than one year.” 50 U.S.C. § 3343(c)(1)(A). However, it also provides for a
waiver from disqualification. 50 U.S.C. § 3343(c)(2)(B). This section provides that “[i]n a
meritorious case, an exception to the disqualification…may be authorized if there are mitigating
factors” authorized in accordance with the Adjudicative Guidelines. Id. 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 the passage of time without recurrence of
criminal activity, compliance with the terms of probation, job training, good employment record, or
constructive community involvement. Guideline J at ¶ 32(a), (d).
Here, the incident leading to the Individual’s imprisonment occurred over 15 years ago. He
acknowledged his wrongdoing and served his sentence in prison, all while bettering himself through
art, computer, and trade classes. Upon his release, the Individual underwent therapy, alcohol and drug
rehabilitation, and an anger management course. Due to this hard work, he was able to complete his
supervised probation early. The Individual has participated in training at his employment site, abides
by all rules and procedures, and holds others accountable to those rules and procedures as well.
Additionally, the Individual has not engaged in any criminal conduct for over 15 years. He has altered
his social habits and alcohol consumption, engages in art as a therapeutic technique, cares for his
significant other, and contributes to his community through volunteer construction projects. Since the
most recent incident of criminal conduct in 2005, I find that the Individual has undergone significant
rehabilitation. I find that he has mitigated the Guideline J security concerns, and I additionally find that
his disqualification from holding a security clearance pursuant to the Bond Amendment is eligible for
a waiver. Guideline J at ¶ 32(a), (d); 50 U.S.C. § 3343(c)(2)(B). As such, I find that the DOE should
grant access authorization to the Individual.
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
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the hearing, I have found that the Individual has brought forth sufficient evidence to resolve the
security concerns associated with the Bond Amendment and Guidelines J. 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.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth at
10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals