PSH-21-0065

*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: May 21, 2021 ) Case No.: PSH-21-0065
)
__________________________________________)
Issued: August 13, 2021
__________________________
Administrative Judge Decision
__________________________
Steven L. Fine, Administrative Judge:
This Decision concerns the eligibility of XXXX XXXX (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, “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 has an extensive history of significant criminal activity during the period beginning
in January 2008 and continuing through September 2017.2 On January 22, 2008, police arrested
the Individual and charged her with Battery (Household Member). Ex. 6 at 1; Ex. 7 at 34; Ex. 8 at
80, 121. On March 31, 2008, and on April 16, 2008, police charged the Individual with Failure to
Appear in in Court. Ex. 6 at 1. On October 10, 2008, Federal law enforcement officials arrested
and charged the Individual with Conspiracy to Import a Controlled Substance, Importation of a
Controlled Substance; Conspiracy to Possess a Controlled Substance with Intent to Distribute; and
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.
2 The LSO obtained this information when the Individual, an applicant for a DOE Security Clearance, underwent a
background investigation. This investigation began after the Individual signed and submitted a Questionnaire for
National Security Positions (QNSP) to the Local Security Office (LSO) on April 10, 2019. Ex. 7 at 1. The United
States Office of Personnel Management’s (OPM) Investigation Service subsequently investigated the Individual and
issued a report of its findings on October 31, 2019. Ex. 8. On February 3, 2020, the Individual signed and submitted
her responses to a Letter of Interrogatory (LOI) issued to her by the LSO on January 24, 2020. Ex. 6 at 33.
**This document contains information which is subject to withholding from disclosure
under 5 U.S.C. § 552.**
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Possession with Intent to Distribute a Controlled Substance. Ex. 6 at 2; Ex. 7 at 35; Ex. 8 at 81,
116. On November 12, 2008, police arrested and charged the Individual with Unlawful Carrying
of a Deadly Weapon, and Offenses by Minors. Ex. 6 at 2; Ex. 7 at 36; Ex. 8 at 102. On December
06, 2008, police arrested and charged her with Under 21 Unlawful Possession of Alcohol. Ex. 6 at
3; Ex. 7 at 37; Ex. 8 at 84, 103. On September 06, 2009, police arrested and charged her with
Driving Under the Influence of Alcohol (.08), first offense, and Careless Driving. Ex. 6 at 4; Ex. 7
at 38; Ex. 8 at 84-85, 103-104. On March 09, 2010, police arrested and charged her with
Shoplifting ($250 or less) and Assault. Ex. 6 at 4; Ex. 7 at 39; Ex. 8 at 83, 104-105. On November
19, 2010, police arrested and charged her with Burglary (commercial), 4th degree Felony, and
Burglary (commercial) Conspiracy, 4th degree Felony. Ex. 6 at 6; Ex. 7 at 43; Ex. 8 at 107-109.
On November 28, 2010, police arrested and charged her with Possession of a Controlled Substance,
4th degree Felony, Attempted Tampering with Evidence, Felony, two counts of Contributing to the
Delinquency of a Minor; and Shoplifting $250 or less. Ex. 6 at 6-7; Ex.7 at 41; Ex. 8 at 84, 106-
107, 110. On December 01, 2010, police charged her with Failure to Comply with Specific
Requirements. Ex. 6 at 8. On August 29, 2011, police arrested and charged her with Battery on a
Peace Officer. Ex. 7 at 44; Ex. 8 at 83. On June 08, 2016, the Individual’s former romantic partner
filed for and received an Order of Protection against her, after the court found that the Individual
committed an act of domestic abuse. Ex. 7 at 45; Ex. 8 at 83, 125. On June 24, 2016, while detained
by Border Police at the U.S. and Mexico border, she spit on Border Patrol agents and made death
threats towards them. Ex. 8 at 87. On September 13, 2017, police cited the Individual for No Proof
of Insurance and Speeding (1-10 mph over). Ex. 7 at 33. On September 16, 2017, police arrested
and charged the Individual with Shoplifting, $250-$500. Ex. 8 at 84, 109, 120.
On May 26, 2011, the Individual was convicted of Tampering with Evidence and two counts of
Shoplifting $250 or less and was incarcerated for 12 months. Ex. 6 at 7; Ex. 7 at 41; Ex. 8 at 110-
113.
The LSO requested that the Individual undergo a psychological/substance abuse evaluation
conducted by a DOE-contracted Psychologist (the Psychologist) who interviewed the Individual
on March 3, 2020. Ex. 9 at 1. On March 15, 2020, the Psychologist issued a report in which she
opined: “Given her life at this time, and mostly over the past 10 years, it is my opinion that [the
Individual] has taken steps and made decisions which make it highly unlikely that she would
engage in criminal activities in the future.”3 Ex. 9 at 8.
On June 23, 2020, the LSO began the present administrative review proceeding by issuing a
Notification Letter to the Individual informing her that she was entitled to a hearing before an
Administrative Judge to resolve the substantial doubt regarding her eligibility to hold a security
clearance. See 10 C.F.R. § 710.21. 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. At the hearing I convened pursuant to 10
C.F.R. § 710.25(d), (e) and (g), I took testimony from eight witnesses: The Individual, her mother,
her father, her stepmother, her fiancé, her union representative, her financial advisor, and her
former teacher. See Transcript of Hearing, Case No. PSH-21-005 (hereinafter cited as “Tr.”). The
3 The Psychologist further concluded that the Individual does not have a substance abuse disorder or “a mental
condition which is impairing her judgement, reliability, stability, or trustworthiness at this time.” Ex. 9 at 8-9.
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LSO submitted ten exhibits, marked as Exhibits 1 through 10 (hereinafter cited as “Ex.”). The
Individual submitted 13 exhibits, marked as Exhibits A through M.
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 her eligibility for a security
clearance, citing the Bond Amendment and Guideline 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 J (Criminal Conduct) provides that “[c]riminal activity creates doubt about a person’s
judgement, reliability, and trustworthiness. By its very nature, it calls into question a person’s
ability or willingness to comply with laws, rules, and regulations.” Guideline J at ¶ 30. The
conditions that could raise a security concern and may be disqualifying under Guideline J include:
“[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 cast doubt on the individual's judgment,
reliability, or trustworthiness, and evidence…of criminal conduct, regardless of whether the
individual was formally charged, prosecuted, or convicted[.]” Guideline J at ¶ 31(a)-(b). The LSO
cites the Individual’s extensive history of criminal activity set forth above in invoking Guideline J.
I find that the LSO’s concerns under Guideline J are justified.
As stated above, the Notification letter also cites the Bond Amendment. 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 noted that the Individual was convicted,
sentenced to eighteen months in federal prison in 1984, and served twelve months. I find that the
LSO’s concerns under the Bond Amendment are justified.
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 entire process
is a conscientious scrutiny of a number of variables known as the “whole person concept.”
Adjudicative Guidelines ¶ 2(a). The protection of the national security is the paramount
consideration. 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).
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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. The discussion below reflects my application of these
factors to the testimony and exhibits presented by both sides in this case.
IV. THE HEARING
The Individual’s mother testified on her behalf at the hearing. She testified that the Individual
began to change her life and become a “better person” while she was incarcerated. Tr. at 20. She
further testified that the Individual struggled with postpartum depression in the period prior to her
incarceration and was associating with people who were bad influences. Tr. at 21-23. Her mother
testified that the Individual no longer associates with the people who are a negative influence, and
is motivated to avoid further incarceration. Tr. at 24, 26. She testified that the Individual has
worked hard to make a better life for herself and her daughter, learn a trade, and become a certified
electrician, like her father. Tr. at 25-26. The Individual now has a “beautiful home” in which to
raise her daughter and has no desire to lose her new “lifestyle.” Tr. at 27. She further testified:
“My daughter has transformed herself. She has risen from the careless, young woman into a more
responsible adult, and out of her love for her daughter and her desire to do better, she has made
substantial improvements on her life. And I know that she only wants to continue in that direction.”
Tr. at 28.
The Individual’s fiancé testified on her behalf at the hearing. He testified that they have been
together since 2018. Tr. at 36. He testified that the Individual has “changed a lot,” noting that,
besides two traffic tickets, she has not engaged in any illegal conduct while he has known her. Tr.
at 37. He testified that the Individual does not associate with drug users or use drugs and that her
alcohol use is infrequent and is in moderation.4 Tr. at 39-40. The Fiancé testified that the
Individual is now a family-oriented homebody whose focus is her daughter. Tr. at 37-39. He further
emphasized that the Individual takes great care to avoid associating with the people with whom she
used to get into trouble. Tr. at 41-42.
The Individual’s union representative testified on her behalf at the hearing. The union
representative testified that he has known the Individual for four years and that she is a punctual,
trustworthy, and dependable employee. Tr. at 52-54.
The Individual’s stepmother testified on her behalf at the hearing. The Stepmother has known the
Individual for 25 years. Tr. at 58. The Stepmother testified that the Individual has made
tremendous strides and that she is very proud of her. Tr. at 61-62. She testified that the Individual
is now “very independent, very strong” and exhibits “integrity” and “professionalism.” Tr. at 62.
She testified that her stepdaughter had “work[ed] very hard to get where she is at now” and has
“applied herself and found a way to get past so many issues.” Tr. at 62. She further testified that
4 The Fiancé could only recall her using alcohol on two occasions since he has known her. Tr. at 40. Tr. at 37, 42.
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the Individual’s changes were motivated by her love for her daughter and her desire to set a good
example for her. Tr. at 62-64. She was also impressed by the Individual’s ability to put herself
through school while being a single parent. Tr. at 65. The Stepmother testified that the Individual
began changing for the better about four years ago and is much happier now. Tr. at 66.
The Individual’s financial advisor testified on her behalf at the hearing. He has known her for
about three years and has worked with her to establish a financial plan for her future. Tr. at 70, 72.
He testified that the Individual’s credit is very good, and that she has invested wisely by purchasing
a home at a good price and interest rate. Tr. at 73. He further testified that the Individual “is a very
responsible parent” and is very family oriented. Tr. at 73. The financial advisor was aware of the
Individual’s history of criminal activity, but has no concerns about her present honesty, reliability,
and judgement. Tr. at 76-77.
The Individual’s former teacher testified on her behalf at the hearing. He testified that he has known
the Individual for about five years and that she is a “hard worker” and a “nice person.” Tr. at 86,
87.
The Individual’s father testified on her behalf at the hearing. He testified that he was “very
impressed” by the way his daughter had changed her life and proud of her ability to overcome her
past through her commitment, determination, and education. Tr. at 94, 96. He testified that she
has “come a long way.” Tr. at 98. He noticed a change in her after she was released from her last
incarceration. Tr. at 98. He testified that she had changed “a bad life to a good life.” Tr. at 99.
The Individual testified at the hearing. During her testimony, she acknowledged her extensive
history of criminal activity. Tr. at 102-107, 119-125. The Individual testified that her post-partum
depression had been a contributing factor to her criminal activity. Tr. at 105. She further described
herself during this period as “hopeless,” “directionless,” and “looking for a place to fit in,” which
led her to choose the wrong friends. Tr. at 105. The people she befriended during her first
incarceration were also a bad influence. Tr. at 106. The Individual acknowledged that she had
managed to stay out of trouble from 2011 to 2015 but started getting in trouble again after that. Tr.
at 107. The Individual testified that her desire to have a family, education, and career motivated
her to change. Tr. at 107. When the Individual was asked why her criminal activity ended, she
stated:
It stopped when I decided that I'm not going to associate myself with individuals
that are getting into trouble and realizing that this isn't a way of life and that's not
how I wanted to live my life, and definitely not an example I want to set for my
daughter. It stopped when I decided to grow up. I decided where -- it stopped when
I decided to take control of my own life and dictate what I want to happen in my
life.
Tr. at 109. The Individual testified that she earned her GED while she was incarcerated and was
able to further educate herself though grants and scholarships. Tr. at 109. She testified that her
grades were good enough for her to obtain “a full-ride scholarship” and make the dean’s list on
several occasions. Tr. at 109-110. She also testified that she has been attending counseling on a
weekly basis. Tr. at 113-114. She testified that her focus is on her family and that she avoids the
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people she associated with in the past. Tr. at 115. She reported that she has been a state-licensed
electrician journeyman since 2018. Tr. at 118-119.
V. ANALYSIS
The Individual has an extensive and significant history of criminal activity and incarceration. This
history alone suggests that the Individual would be a poor candidate for a security clearance.
However, the Adjudicative Guidelines instruct me to employ the “whole person concept” which
requires that I carefully weigh a number of “variables of an individual's life” to determine whether
that individual is an acceptable security risk. Adjudicative Guidelines at § 2(a). In the present
case, I find that the Individual has resolved the security concerns raised by her criminal activity by
showing that she has grown and matured, changed her behavior, obtained an education, obtained a
professional license, established a successful career, and become a responsible parent. By doing
so, she has exhibited good judgment, reliability, and trustworthiness during the past four years. It
is also important to note that, after conducting a thorough review of her security file and a forensic
psychological evaluation of the Individual, the Psychologist opined that the Individual was not
likely to further engage in criminal behavior.
The credible hearing testimony of the Individual, as well as her mother, father, stepmother, fiancé,
and financial advisor as well as the opinion of the Psychologist have convinced me that the
Individual has grown and matured and now exhibits reliability, trustworthiness, honesty, and good
judgement. During the Individual’s testimony, she fully acknowledged her previous poor judgment
and took responsibility for her actions. The opinion of the Psychologist as well as the Individual’s
testimony and that of her witnesses, have convinced me that she has learned from her mistakes and
has become a responsible, law-abiding adult. In addition, the Individual has shown that she has
earned several professional certifications, earned a professional license, completed her electrical
apprenticeship, and has been meaningfully employed since 2018. Exs. A-M.
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 sets forth four conditions that, if present, may mitigate security concerns arising under
Guideline J. Two of those mitigating conditions are present in the instant case. Section 32(a)
provides that security concerns arising from criminal conduct can be mitigated when: “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.” Adjudicative Guideline J at § 32(a). Four years have passed
since the Individual’s last arrest, and as I have discussed above, the opinion of the Psychologist
and the testimony I heard at the hearing has convinced me that her criminal activity is unlikely to
recur. Section 32(d) provides that security concerns arising from criminal conduct can be mitigated
when: “There is evidence of successful rehabilitation; including, but not limited to, the passage of
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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.” Adjudicative Guideline J at § 32(d). In the present case, there is abundant evidence
of successful rehabilitation: The Individual has acknowledged that she exercised poor judgment
and behaved inappropriately in the past and has exhibited a change in behavior for the past four
years. Moreover, she has successfully completed extensive job training and has a very good
employment record.
Accordingly, I find that the Individual has mitigated the Guideline J security concerns, and I
additionally find that her 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
For the reasons set forth above, I conclude that the LSO properly invoked Guideline J as well as
the Bond Amendment. After considering all of the evidence, both favorable and unfavorable, in a
commonsense manner, I find that the Individual has mitigated the security concerns raised under
Guideline J and the Bond Amendment. Accordingly, the Individual has demonstrated that granting
her security clearance would not endanger the common defense and would be clearly consistent
with the national interest. Therefore, the Individual’s security clearance should be granted. The
parties may seek review of this Decision by an Appeal Panel under the procedures set forth at 10
C.F.R. § 710.28.
Steven L. Fine
Administrative Judge
Office of Hearings and Appeals