PSH-22-0039

*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: December 29, 2021 ) Case No.: PSH-22-0039
)
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Issued: May 9, 2022
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (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, “Procedures for Determining Eligibility for Access to Classified Matter and
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 restored.
I. BACKGROUND
The Individual is employed by a DOE contractor in a position that requires him to hold a security
clearance. A 2016 background investigation of the Individual concerning his eligibility to hold a
security clearance revealed that, in 1998, he was arrested for domestic violence related to a dispute
with his mother and taken to a juvenile detention center. Exhibit (Ex.) 11 at 75. On January 23,
2021, the Individual was arrested for Aggravated Battery Against a Household Member (Battery)
after a domestic dispute with his girlfriend (Girlfriend). Ex. 10. The local security office (LSO)
issued the Individual a letter of interrogatory (LOI) concerning the circumstances of his arrest. Ex.
9. In his response to the LOI, the Individual asserted that a verbal dispute with the Girlfriend
“briefly turned physical” and he was “forced to self-defend.” Id. at 1. The Individual was arrested
for Battery for a second time following a domestic dispute with the Girlfriend on September 3,
2021. Ex. 7 at 2–3.
The LSO issued the Individual a letter in which it notified him that it possessed reliable information
that created substantial doubt regarding his eligibility to hold a security clearance. In a Summary
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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of Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory
information raised security concerns under Guideline J (Criminal Conduct) of the Adjudicative
Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted eleven exhibits (Ex. 1–11). The Individual submitted thirteen exhibits
(Ex. A–M). The Individual testified on his own behalf and offered the testimony of a friend
(Individual’s Friend), his counselor (Individual’s Counselor), a former coworker (Individual’s
Coworker), and a psychologist who evaluated him in advance of the hearing (Forensic
Psychologist). Hearing Transcript (Tr.) at 3, 25, 54, 76, 86, 154. The LSO did not call any
witnesses. Id. at 3.
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline J (Criminal Conduct) as the basis for its determination that the Individual
was ineligible for access authorization. Ex. 1. “Criminal 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.” Adjudicative Guidelines at ¶ 30. The
SSC cited the Individual’s arrest for domestic violence in 1998 and his two arrests for Battery
against the Girlfriend in 2021. Ex. 1. The LSO’s allegation that the Individual was arrested for
domestic violence and Battery justifies its invocation of Guideline J. Adjudicative Guidelines 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
Dep’t 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.
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IV. FINDINGS OF FACT
The Individual was arrested for domestic violence as a minor in 1998 following a dispute with his
mother. Ex. 11 at 75. Records obtained during the investigation of the Individual’s eligibility for
a security clearance reflected that the Individual’s mother accused him of throwing objects and
chasing her after she took away his car keys, causing her to fear that he would strike her. Id. The
Individual denied these allegations. Id.; see also Ex. 9 at 6 (reflecting the Individual’s response to
the LOI in which he asserted that the dispute in question was “a verbal altercation” and that his
mother called the police to “teach [him] a lesson . . . .”). A law enforcement officer who responded
to the incident observed a hole in a wall, a broken chair, and numerous objects on the ground, and
placed the Individual under arrest. Ex. 11 at 75.
As an adult, the Individual earned a bachelor’s degree and obtained employment with the DOE
contractor. Tr. at 169–73; Ex. B; Ex. D at 5–6. In 2020, the Individual earned a graduate degree to
allow him to take on a more advanced role with the DOE contractor. Tr. at 174–76; Ex. D at 1–2.
The Individual has a positive employment record with the DOE contractor. Ex. C; see also Tr. at
81–83 (reflecting the opinion of the Individual’s Coworker that he was a positive contributor who
exercised good judgment and a high level of professionalism in the workplace).
The Individual dated several women as an adult who deny that he engaged in domestic violence
against them. Tr. at 179–80; Ex. F (reflecting the statement of an ex-girlfriend of the Individual
that she found him to be a kind person who had never behaved violently towards her); Ex. H
(reflecting the statement of another ex-girlfriend of the Individual who denied that the Individual
had ever acted violently towards her). A long-time friend of the Individual, who was previously
employed as a law enforcement officer, testified that he had never observed the Individual display
violent tendencies and that he believed that the Individual was a trustworthy person. Tr. at 27, 30,
33, 40.
The Individual met the Girlfriend in August or September of 2020. Tr. at 176. After they dated for
several months, the Girlfriend moved into the Individual’s home in late December of 2020. Id. at
178. The Individual did not perceive any substance abuse problems on the part of the Girlfriend
prior to their cohabitation. Id. at 180–81. According to the Individual, shortly after the Girlfriend
moved into his home, he frequently observed her consume alcohol to excess and even to the point
where she lost consciousness. Id. at 181. The Individual represented that he tried to prevent her
from drinking and characterized her as “defensive,” “angry,” and “threatening” in response to his
efforts to control her drinking. Id. at 183–85. The Individual and the Girlfriend also had
conversations about her communications with an ex-boyfriend, which he sometimes perceived as
an effort to “taunt” him, that caused him to become “frustrated.” Id. at 186–87, 206–07.
In the early morning hours of January 23, 2021, law enforcement officers were summoned to the
Individual’s home due to reports of domestic violence.2 Ex. 10 at 2; see also Tr. at 188–89
2 The Individual claimed that the Girlfriend called her father after arguing with the Individual and that her father called
the police. Tr. at 229–30, 232; Ex. 9 at 1. The police report prepared in connection with the incident indicates that the
Girlfriend called the police and reported that the Individual “‘slammed’ her into ‘glass.’” Ex. 10 at 2.
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(reflecting the Individual’s testimony that the Girlfriend woke him up “super early” to “dig into
[him] about this [] other guy . . . that she had been contacting”). The Girlfriend told a law
enforcement officer who responded to the call that the Individual attacked her while she was
sleeping, threw her on the ground, and dragged her down a flight of stairs. Ex. 10 at 2. The
Individual denied that there had been “physical violence.” Id. The law enforcement officer
observed cuts on the Girlfriend’s left hand and right foot, and saw blood on the Individual’s right
hand which he believed to be the Girlfriend’s based on the absence of wounds on the Individual.3
Id. at 2. The law enforcement officers deemed the Individual to have been the predominant
aggressor based on the observed injuries, and placed the Individual under arrest for Battery. Id. at
2–3.
On January 26, 2021, the LSO received a Personnel Security Information Report revealing that the
Individual had been arrested for Battery. Ex. 8 at 1. In March 2021, the LSO issued the Individual
the LOI concerning the circumstances of his arrest. Ex. 9. In his response, the Individual asserted
that he and the Girlfriend engaged in a verbal dispute “about an ex-boyfriend she made contact
with” and that he was “forced to self-defend” when the dispute “briefly turned physical.” Id. at 1;
see also Tr. at 190 (representing that the Individual put the Girlfriend in “a boxing hug” to restrain
her from striking him or damaging his property). The Individual represented that he had learned
that he needed “to improve [his] anger management and communication skills” and that he had
voluntarily enrolled in counseling for anger management to address this issue. Ex. 9 at 4–5. The
charges against the Individual were dismissed as a result of the Girlfriend refusing to cooperate
with the prosecution. See Ex. 4 at 1 (summarizing information obtained by the LSO concerning
the Individual’s eligibility for a security clearance).
In June 2021, the Girlfriend broke into the Individual’s home by crawling through a “doggie door.”
Tr. at 202. The Individual called law enforcement to report the intrusion and the Girlfriend fled
the scene before law enforcement officers arrived. Id. at 203. Approximately one month later, the
Girlfriend contacted the Individual via social media, and they began exchanging messages multiple
times weekly. Id. at 139, 204–06. Based on these messages, and information that he had received
from the Girlfriend’s parents that she had entered treatment for substance abuse, the Individual
determined that “she seemed like she was doing better.” Id. at 204–06.
According to the Individual, time passed after they first exchanged messages on social media until
the Girlfriend called him to ask for help because she was at her ex-boyfriend’s residence and felt
that she was in danger. Id. at 207. The Individual claimed that he decided to pick her up because
he “wanted to be helpful” and “cared about her.” Id. at 208, 219. According to the Individual, when
he saw her “[s]he looked beat up. She had, you know, a black eye, marks all over her face.” Id. at
207. He asserted that she refused his offer to transport her to a hospital, and that he instead took
her to his home at her request. Id. at 208.
The Individual testified that he believed that the Girlfriend’s parents would pick her up from his
home, but that they did not respond to his text messages. Id. at 209. According to the Individual,
3 At the hearing, the Individual represented that he and the Girlfriend both suffered cuts after a floor lamp was knocked
over while he attempted to restrain her. Tr. at 190. He testified that he did not “understand why they didn’t see the
cuts on [his] hand, because [he] had been sweeping up the glass and picking up the pieces, and [he] cut [him]self doing
that.” Id. at 230.
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he decided to allow the Girlfriend to remain in his home overnight. Id. He claims that he awoke in
the early morning hours “one or two days later” to find the Girlfriend consuming alcohol and that
he took it from her and poured it down the drain which caused her to become angry. Id. at 209–
10, 236.
On September 3, 2021, the Girlfriend’s mother called 911 and reported that the Girlfriend had
called her and said that the Individual “had a shotgun” and was not allowing her to leave the
premises.4 Ex. 7 at 2. The law enforcement officers who responded to the call observed “fresh and
recent bruising” to the Girlfriend’s eyes, “apparent blood vessel bursting in her left eye, swelling
and redness to her forehead, fresh redness, bruising to her throat and area [sic] of her lower chin,
and bruising to her right knee and both arms.” Id. The Girlfriend alleged that the Individual struck
her multiple times during an argument and had previously strangled her “to the point where she
would nearly lose consciousness.” Id. The Girlfriend represented that they had argued about “his
possible sexual orientation and her [] prior relationships.” Id. The Individual represented to the
law enforcement officers that the Girlfriend was “an alcoholic and falls.”5 Id. at 3. The law
enforcement officers arrested the Individual for Battery. Id. at 2–3. The Girlfriend was transported
to a hospital by ambulance for treatment of her injuries. Id. at 3.
On September 26, 2021, the Girlfriend came to the Individual’s home and a neighbor of the
Individual escorted her off the Individual’s property while the Individual retreated into his home.
Tr. at 220; see also Ex. M (reflecting the opinion of the neighbor that the Girlfriend appeared
intoxicated and including a photo taken by the neighbor that shows the Girlfriend receiving
medical attention from an Emergency Medical Technician while apparently unconscious). The
charges against the Individual related to his September 2021 Battery arrest were dismissed in
October 2021 after the Girlfriend failed to appear at a hearing. See Ex. 3 at 1 (summarizing
information obtained by the LSO concerning the Individual’s eligibility for a security clearance).
The Individual entered counseling with the Individual’s Counselor in September 2021. Tr. at 57.
The Individual has attended counseling at least once every two weeks since that time and has not
missed a session. Id. The Individual’s counseling is focused on “working on relationships
overall . . . and especially working on strategies for frustration and regulation for negative
feelings.” Id. at 58. The Individual’s Counselor has advised the Individual “you can’t be too
trusting. You can’t make friends too quickly whether you have a focusing problem or not. And
above all you have to think before you act. You have to think about things. You have to never be
impulsive when you’re making friends.” Id. at 62. The Individual’s Counselor opined at the
hearing that she believes that he has made progress because he has told her that he has not answered
the phone when the Girlfriend calls or admitted her when she comes to his home. Id. at 61.
4 The Individual’s girlfriend told the law enforcement officers who responded to the 911 call that the Individual
possessed firearms but that “none were used in the commission of any crime during the incident.” Ex. 7 at 2.
5 At the hearing, the Individual claimed that he had gone to his room after the Girlfriend became agitated at him for
taking alcohol away from her and implied that the injuries the law enforcement officers observed on her body were
attributable to her ex-boyfriend. Tr. at 210, 215, 217. In light of the inconsistency between this claim and the
Individual’s account to the law enforcement officers that the Girlfriend was “an alcoholic and falls,” as well as the
lack of evidence substantiating his claim that the Girlfriend expressed concerns for her safety while at her ex-
boyfriend’s home, I do not credit the Individual’s account of how the Girlfriend suffered her injuries.
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In April 2022, the Forensic Psychologist conducted a four-and one-half-hour clinical interview of
the Individual. Id. at 149. He also evaluated the results of psychological testing conducted by
another psychological practitioner and reviewed portions of the administrative record. Id. at 87–
88, 95; see also Ex. J (reflecting the materials provided to the Forensic Psychologist). The Forensic
Psychologist opined that the incidents cited in the SSC were “outliers” that did not raise concerns
related to the Individual’s honesty, trustworthiness, or judgment. Tr. at 96. The Forensic
Psychologist did not believe that the Individual’s altercation with his mother or incidents with the
Girlfriend were related because the underlying causes of the disputes were different and the
altercation with the Individual’s mother caused minor property damage while the altercations with
the Girlfriend were “different animals.” Id. at 105–06. The Forensic Psychologist likewise opined
that the Individual’s altercations with the Girlfriend did not constitute a pattern because the first
incident occurred during a domestic dispute in the household, whereas the second one occurred in
the context of a platonic relationship where he was providing her with a place to stay while waiting
for her to find alternative living arrangements. Id. at 109–14.
The Forensic Psychologist credited the Individual’s account of his altercation with his mother
because the Individual was consistent in his account of the incident during the clinical interview
and was willing to admit that he had been partially at fault in the dispute that led to his arrest. Id.
at 101–03. The Forensic Psychologist opined that the Individual’s formation of his relationship
with the Girlfriend did not reflect poor judgment because she appeared to have positive
characteristics and did not display evidence of an alcohol use disorder prior to their cohabitation.
Id. at 106–07. The Forensic Psychologist noted that the Individual demonstrated insight into how
his efforts to control the Girlfriend’s drinking had started a cycle and identified ways he could
have better handled the disputes that occurred. Id. at 118–20. The Forensic Psychologist opined
that the Individual demonstrated evolved decision making and effective boundaries by refusing to
engage with the Girlfriend despite her repeated attempts to do so following the second altercation.
Id. The Individual also demonstrated the ability to identify similar behavioral “flags” in other
people with whom he interacts and an appropriate ability to avoid exposing himself to adverse
consequences by associating with these types of people. Id. at 121.
V. ANALYSIS
A. Guideline J
The Individual’s arrests for domestic violence and Battery justify the LSO’s invocation of
Guideline J. Adjudicative Guidelines at ¶ 31(b). An individual may mitigate security concerns
under Guideline J if:
(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;
(b) the individual was pressured or coerced into committing the act and those pressures
are no longer present in the person’s life;
(c) [there is] no reliable evidence to support that the individual committed the offense;
and
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(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(a)–(d).
Two of these mitigating conditions are applicable to the Individual’s alleged domestic violence
against his mother. The first mitigating condition is applicable because over twenty years
elapsed between his 1998 arrest and the next alleged criminal conduct in which he engaged.
Id. at ¶ 31(a). The fourth mitigating condition is also applicable because, over the decades
following his alleged misconduct, the Individual demonstrated rehabilitation through his
college education and positive employment record. Id. at ¶ 31(d). In considering the
applicability of these mitigating conditions, I placed heavy weight on the fact that the
Individual was a minor when he allegedly committed the offense and lacked the “age and
maturity” to fully exercise sound judgment. 10 C.F.R. § 710.7(c).
However, the Individual has not established the applicability of any of the mitigating
conditions with respect to his alleged Battery offenses against the Girlfriend. The Individual
asserted that he did not commit either alleged Battery and that his sworn testimony at the
hearing, the Girlfriend’s failure to cooperate with his prosecution, and the opinions of his
Friend and former girlfriends that he would not have committed the offenses were sufficient
to establish that there was no reliable evidence to support that he committed the offenses. I do
not agree.
The police reports prepared in connection with his arrests for Battery, both of which contain
detailed, contemporaneous descriptions of injuries the law enforcement officers observed on
the Girlfriend and conclusions that the Individual was the predominant aggressor in the
altercations, are strong evidence that the Individual committed the offenses. Moreover, I find
the Individual’s explanations for the injuries the officers observed on the Girlfriend in
connection with his September 2021 arrest extremely implausible and indicative of a lack of
credibility on his part. For these reasons, I conclude that the third mitigating condition under
Guideline J is inapplicable. Adjudicative Guidelines at ¶ 31(c).
The Individual also claimed that the Girlfriend’s alcohol abuse caused the disputes that led to
his arrest, and that counseling had helped him to exercise better judgment through detecting
behavioral red flags and avoiding forming relationships with persons who displayed these red
flags. In support of these claims, the Individual offered the opinion of the Forensic
Psychologist that he demonstrated insight into the causes of the altercations and that his
improved decision making reduced his risk of placing himself into situations that could result
in his arrest. Thus, the Individual asserted that the conflict in which he engaged with the
Girlfriend was an unusual circumstance which is unlikely to recur.
I am not convinced that the Girlfriend’s purported alcohol abuse constituted unusual
circumstances explaining the Individual’s conduct. Neither police report associated with the
Individual’s arrests for Battery indicates that the arresting officers observed signs that the
Girlfriend was intoxicated, and the Individual’s response to the LOI did not mention alcohol
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as a cause of the January 2021 altercation. Instead, the Individual’s response to the LOI and
the police report associated with his September 2021 arrest suggest that the Individual and the
Girlfriend fought over her communications with another man. While the Girlfriend may well
have suffered from an alcohol use disorder, there is nothing in the record except the
Individual’s testimony and statements to others to support his claim that the altercations that
led to his arrests were precipitated by her intoxication. Rather, it appears that the Individual is
using her alcohol abuse as an excuse for his own violent behavior during domestic disputes.
Even if the Girlfriend behaved violently while intoxicated as he claims, I would still conclude
that the Individual’s concerning behavior is not unlikely to recur. The Girlfriend’s injuries as
described in the September 2021 police report were significant, and I do not credit his claim
that another man caused the injuries. Furthermore, his decision in September 2021 to allow an
allegedly unstable, alcohol abusing person into his home, even after he claims that she falsely
accused him of committing a violent crime, is inexplicable. In light of the Individual’s
extremely poor decision making, and efforts to shift responsibility to the Girlfriend and another
man, I am not convinced that he acknowledges the wrongfulness of his conduct and that it will
not recur. For these reasons, I find that the first mitigating condition under Guideline J is
inapplicable. Id. at ¶ 32(a).
The remaining two mitigating conditions are clearly inapplicable in this case. The Individual
does not assert that he was pressured or coerced into committing criminal conduct, and thus
the second mitigating condition is not applicable. Id. at ¶ 32(b). The fourth mitigating condition
is inapplicable because the Individual’s conduct was recent and the positive employment and
educational achievements the Individual offered as proof of rehabilitation occurred prior to the
alleged criminal conduct. Id. at ¶ 32(d).
The record strongly suggests that the Individual violently injured the Girlfriend during
domestic arguments and used her substance abuse as an excuse for his criminal conduct. The
Forensic Psychologist offered a reasonable opinion that the Individual’s psychological profile
and insight into his mistakes reduce his risk of recidivism and do not cast doubt on his
judgment, reliability, and trustworthiness. However, I find that the concerns raised by the
police reports, the Individual’s implausible explanations for the Girlfriend’s injuries, and the
Individual’s extremely poor decision making leading to his altercations with the Girlfriend are
too weighty to be overcome by the impression formed by the Forensic Psychologist in his
clinical interview. Thus, I find that the Individual has not resolved the security concerns
asserted by the LSO under Guideline J.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline J of the Adjudicative Guidelines. After
considering all of the relevant information, favorable and unfavorable, in a comprehensive,
common-sense manner, including weighing all 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 Summary of Security Concerns. Accordingly, I have determined that the
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Individual’s access authorization should not be restored. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals