PSH-23-0005

*The original of this document contains information which is subject to withholding from disclosure
under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: October 5, 2022 ) Case No.: PSH-23-0005
)
______________________________________)
Issued: February 2, 2023
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Administrative Judge Decision
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Katie Quintana, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the United States Department of Energy’s
(DOE) regulations, as 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 should not be granted access authorization.
I. Background
The Individual is an applicant for employment with a DOE contractor for a position that would
require him to hold a security clearance. In connection with the request for the Individual to be
given access authorization, the DOE reviewed the Individual’s personnel security file, including
his Questionnaire for National Security Positions (QNSP), Letter of Interrogatory (LOI), Enhanced
Subject Interview (ESI), and Triggered Enhanced Subject Interview (TESI). Ex. 1 at 1-2. Due to
unresolved security concerns, the Local Security Office (LSO) informed the Individual, in a
Notification Letter, that it possessed reliable information that created substantial doubt regarding
his eligibility to hold a security clearance. Id. In the Summary of Security Concerns (SSC) that
accompanied the Notification Letter, the LSO explained that the derogatory information raised
security concerns under Guideline E (Personal Conduct) of the Adjudicative Guidelines. Id. at 1-
2.
Upon receipt of the Notification Letter, the Individual exercised his right under the Part 710
regulations to request 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 nineteen numbered exhibits (Exs. 1-19) into the record. The Individual introduced nine
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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lettered exhibits (Exs. A-I) into the record and testified on his own behalf. The hearing transcript
in the case will be cited as “Tr.” followed by the relevant page number.
II. Regulatory Standard
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 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 the SSC, which sets forth the derogatory
information that raised concerns about the Individual’s eligibility for access authorization. The
SCC specifically cites Guideline E of the Adjudicative Guidelines. Ex. 1. Guideline E addresses
conduct involving questionable judgment, lack of candor, dishonesty, or an unwillingness to
comply with rules and regulations. Adjudicative Guidelines at ¶ 15. Such conduct “can raise
questions about an individual’s reliability, trustworthiness, and ability to protect classified or
sensitive information. Of special interest is any failure to cooperate or provide truthful and candid
answers during national security investigative or adjudicative processes.” Id.
Regarding Guideline E, the LSO listed the following conduct:
1. In his August 2021 QNSP, the Individual stated that his access authorization was
suspended as the result of a September 2011 written reprimand related to job
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performance.2 However, information in the possession of DOE indicated that the
Individual was reprimanded, and his access authorization was suspended due to security
concerns related to his finances and misuse of a corporate credit card.
2. During a September 2021 ESI, the Individual clarified that his access authorization was
previously suspended due to financial issues. However, information in the possession of
DOE indicated that the suspension was additionally based upon misuse of a corporate
credit card, and the Individual failed to share that information.
3. During an October 2021 TESI, the Individual admitted that his access authorization was
suspended when he used his company credit card for personal use.
4. The Individual stated in his August 2021 QNSP that he had never been diagnosed with
Bipolar Mood Disorder (BPD). However, information in the possession of DOE indicated
that the Individual was diagnosed with BPD in approximately September 2010 and again
in February 2011.
5. The Individual stated in his August 2021 QNSP that, in the last seven years, he had not
failed to file or pay taxes. However, in a March 2022 LOI, he admitted that he owed the
IRS over $100,000 in past due tax debt.
6. In his August 2021 QNSP, the Individual stated that, in the last seven years, he had not
had any accounts charged off due to failure to pay as agreed. However, information in the
possession of DOE indicated that the Individual has an account that was assigned as
charged off in July 2018.
7. The Individual stated in his August 2021 QNSP that he had not had any bills turned over
to a collection agency or been over 120 days delinquent on any debt in the last seven years,
with the exception of one medical bill. However, information in possession of DOE
indicated that the Individual had at least six accounts that were over 120 days past due.
Ex. 1.3
IV. Findings of Fact
In completing his 2021 QNSP, the Individual stated that:
2 It should be noted that, although the Individual previously held a security clearance in the course of his career, the
Individual retired from that position shortly after his security clearance was suspended. Tr. at 25. As such, he is
presently an applicant for a security clearance.
3 Although there was an additional allegation raised in the SCC asserting an inconsistency in the Individual’s
statements regarding a payment plan with the IRS, during the hearing, DOE counsel noted that this allegation appears
to have stemmed from confusion on the part of the investigator and was no longer an issue. Tr. at 45-47.
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1. He had never “been diagnosed by a physician or other health professional (for
example, a psychiatrist, psychologist, licensed clinical social worker, or nurse
practitioner) with psychotic disorder, schizophrenia, schizoaffective disorder,
delusional disorder, bipolar mood disorder, or antisocial personality disorder.”
2. His clearance was suspended in approximately September 2011 because he
“was given a written reprimand for [j]ob performance.”
3. In the last seven years, he had not “failed to file or pay Federal, state, or other
taxes when required by law or ordinance.”
4. He had not had any accounts “charged off . . . for failing to pay as assigned.”
5. Over the past seven years, he had only had one debt that was over 120 days
delinquent.
Ex. 16 at 32, 37-40.
In September and October of 2021, the Individual completed interviews with Defense
Counterintelligence and Security Agency (DCSA) investigators. Ex. 1 at 1-2. During the
September interview, the Individual told the investigator that, in 2011, “his security clearance was
not suspended due to employment issues, per se, and as listed on his QNSP, but rather due to
financial issues.” Id. at 1. At the second interview in October of 2021, the Individual admitted to
the investigator that his clearance had been suspended after he used his company credit card for
personal use. Id. The Individual also acknowledged that he had used the company credit card for
personal purchases on multiple occasions when he did not have his own money to make purchases.4
Id. at 2.
In his March 2022 LOI, the Individual explained that he had not disclosed his BPD diagnosis in
his QNSP because his counselor and personal physicians stated that he did “not exhibit signs of
being Bipolar,” and the diagnosis was “most likely a mistake.” Ex. 12 at 16. The Individual said
his exclusion of the diagnosis on the QNSP “was not deliberate.” Id. Regarding the 2011
suspension of his security clearance, the Individual indicated that he had stated that his clearance
was suspended due to a job performance issue rather than financial concerns and misuse of a
corporate credit card because he “assumed the misuse of a corporate credit card was also a job
performance issue.” Id. He alleged that he did not deliberately exclude that information from his
QNSP. Id.
The Individual additionally stated in his March 2022 LOI that he and his wife “owe[d]
approximately 100K [in Federal taxes] and ha[d] a payment plan for $1800 per month.” Ex. 12 at
14. In addressing the charged off accounts, the Individual stated that he “forgot” about two
4 Although the transcripts of the September and October 2021 interviews are not in the record, the Individual did not
dispute the allegations contained in the SSC during the hearing. Tr. at 33, 74.
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accounts that had been charged off and “it was not deliberate” that he did not include them on his
QNSP. Id. at 15. As to the six accounts that DOE alleged were more than 120 days past due, the
Individual stated that he “did not realize [the accounts] were over 120 days past due” and the
omissions were “not deliberate.” Id.
V. Hearing Testimony
At the hearing, a former coworker (Coworker) testified on the Individual’s behalf. Tr. at 10. The
Coworker testified that he had known the Individual since 2001 and worked with him regularly
from approximately 2001 to 2006. Id. at 13. According to the Coworker, he and the Individual
continued to work together on a more limited basis until 2008. Id. at 14-15. The Coworker stated
that the relationship was solely professional and did not involve any social interaction outside of
work. Id. at 15-16. He noted that he finds the Individual to be trustworthy, and he testified that he
has “never had any doubt about [the Individual’s] – commitment to the national security.” Id. at
19, 21.
A. Testimony Regarding the 2011 Suspension of Clearance
The Individual acknowledged that his security clearance was suspended “around 2011” and noted
that he did not disclose his misuse of a corporate credit card on his QNSP but, instead, attributed
the suspension to his job performance. Id. at 25, 30, 32. He further testified that he provided this
answer because he “just assumed that it was all job-related performance,” and he “didn’t look at it
from the perspective of it was just the misuse of the credit card.” Id. at 30. The Individual
characterized his answers on the QNSP regarding the suspension of his clearance as “a mistake.”
Id. at 31.
Turning to the September 2021 ESI, the Individual testified that he stated that his clearance was
suspended due to “financial issues” because he “probably lumped everything together into
financial issues, both misusing the card and financial issues together when [he] said that.” Id. at
33. When asked why he did not disclose this information until the TESI, he said he “really [didn’t]
know the answer to that question.” Id. at 74.
B. Testimony Regarding the Individual’s Bipolar Mood Disorder Diagnosis
The Individual testified that he had been diagnosed with BPD once “roughly” around 2010.5 Id. at
36. He explained that he answered “no” on the QNSP with regard to the diagnosis because “every
other psychiatrist, psychologist, mental health person [he has] discussed this with all have said
5 During a 2011 Personnel Security Interview, the Individual disclosed that he was diagnosed with BPD in 2010 by a
psychiatrist (First Psychiatrist) he saw approximately three to four times. Ex. 17 at 168. He stated that he began to see
a new psychiatrist (Second Psychiatrist) because he did not like the First Psychiatrist, and he was moving his practice
to telemedicine. Id. at 166. The Individual indicated that the Second Psychiatrist agreed with the BPD diagnosis though
the Individual said the Second Psychiatrist “thought it was a little nebulous.” Id. at 169. He explained that, at that time,
he was also seeing a psychologist (Psychologist) who, according to the Individual, said that she understood why the
psychiatrists made the BPD diagnosis but would not have diagnosed it herself. Id. at 184.
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[he] do[es] not exhibit signs of bipolar disorder.” Id. at 36. The Individual stated that he was
“looking at the question from a different perspective, not the way the question was actually
written.” Id. at 38.
C. Testimony Regarding the Individual’s Financial Issues
Turning to his QNSP answers related to his finances, the Individual acknowledged that he
answered “no” to the question about whether he had failed to pay Federal taxes in the last seven
years. Id. at 50. He stated that answering yes “would have been a better answer,” but he defended
his answer, stating that he had always filed his taxes and had taxes withheld from his paycheck.
Id. at 47, 50. The Individual explained that the unpaid taxes were related to his wife’s private
business. Id. at 48. Although the Individual conceded that he “hadn’t been paying the proper
amount of taxes,” he stated that he “didn’t look at [the QNSP question] from that perspective” and
that had been a “mistake.” Id. at 51, 70.
In addressing his answers related to the charged off accounts, the Individual stated that, in failing
to list his charged off accounts, he “just plain made a mistake when [he] answered.” Id. at 52-53.
He further indicated that he had forgotten that some of the accounts existed. Id. The Individual
elaborated, stating that he was not attempting to hide the debts, as he knew DOE could access his
credit reports, but he “was incorrect in answering that question.” Id. at 53-54.
Regarding the Individual’s past due accounts, the Individual testified that, at the time he completed
the QNSP, he had not “seen a credit report in quite a while,” and although he knew that he had
“many, many debts” that were past due, he did not know that they were 120 days past due. Id. at
56-57. The Individual acknowledged that he answered the question regarding debts over 120 days
past due incorrectly, and he stated that it was his “fault” for failing to obtain a credit report or
failing to verify the due dates of the debts. Id. at 57.
VI. Analysis
I have thoroughly considered the record of this proceeding, including the submissions tendered in
this case and the testimony of the Individual during 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. After due deliberation, I have
determined that the Individual has not sufficiently mitigated the security concerns cited by the
LSO under Guideline E of the Adjudicative Guidelines. Therefore, I find that the Individual should
be denied access authorization. The specific findings that I make in support of this decision are
discussed below.
Regarding Guideline E, “deliberate omission, concealment, or falsification of relevant facts from
any personnel security questionnaire, personal history statement, or similar form used to conduct
investigations, determine employment qualifications, award benefits or status, determine national
security eligibility or trustworthiness, or award fiduciary responsibilities” may raise a security
concern and may disqualify an individual from receiving a security clearance. Adjudicative
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Guidelines at ¶ 16(a). “Deliberately providing false or misleading information; or concealing or
omitting information, concerning relevant facts to an employer, investigator, security official,
competent medical or mental health professional involved in making a recommendation relevant
to a national security eligibility determination, or other official government representative” may
also disqualify an individual from holding a clearance. Id. at ¶ 16(b).
An individual may also mitigate the concerns if he shows:
(a) The individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
(b) The refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
(c) The offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
recur and does not cast doubt on the individual's reliability, trustworthiness, or good
judgment;
(d) The individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
(e) The individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) The information was unsubstantiated or from a source of questionable reliability;
and
(g) Association with persons involved in criminal activities was unwitting, has ceased,
or occurs under circumstances that do not cast doubt upon the individual's
reliability, trustworthiness, judgment, or willingness to comply with rules and
regulations.
Id. at ¶ 17.
Here, the Individual failed to accurately answer at least six questions on his QNSP. See id. at
¶ 16(a). When given the chance to correct his answers in the September 2021 ESI, the Individual
instead continued to withhold the information by telling investigators that his clearance had
previously been suspended exclusively due to his financial issues, excluding the information
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surrounding his misuse of a corporate credit card. See id. at ¶ 16(b). It was not until the TESI in
October of 2021 that the Individual admitted that his clearance had been suspended because of his
misuse of a corporate credit card. However, the Individual did not disclose the full extent of his
misuse of the corporate credit card, his diagnosis of BPD, his tax issues, his charged off accounts,
or his past due debts until the March 2022 LOI. As there is no indication that the Individual made
prompt and good-faith efforts to correct his omissions and concealments before he was confronted
with the facts, I cannot find that the Individual mitigated the security concerns pursuant to
Adjudicative Guideline ¶ 17(a).
Similarly, I cannot find that so much time has passed or the concerning behavior was minor or
happened under such infrequent or unique circumstances that it is unlikely to recur and does not
cast doubt on the Individual’s reliability, trustworthiness, or good judgment. The QNSP and
interviews were all completed within the previous two years, and, according to the Individual, he
repeatedly viewed the questions from a perspective that differed from how they were expressly
written. Furthermore, the Individual acknowledged that he mistakenly or erroneous answered
multiple questions. As such, I cannot find that the Individual has demonstrated that his concerning
behavior is unlikely to recur or that the circumstances surrounding his relatively recent and
repeated failure to provide accurate and candid answers do not cast doubt on his judgment,
reliability, or trustworthiness. Therefore, the Individual has not mitigated the security concerns
pursuant to Adjudicative Guidelines ¶ 17(c).
Although the Individual has acknowledged that he made numerous errors in his provision of
information throughout the clearance application process, I cannot find that the Individual has
mitigated the security concerns pursuant to mitigating factor ¶ 17(d). The Individual has not
sufficiently detailed his plan for ensuring that he will be able to provide complete and fully candid
answers to the DOE in future. As such, I cannot find that the behavior at issue here is unlikely to
recur.6
For the foregoing reasons, I cannot find that the Individual has mitigated the security concerns
arising under Guideline E.
VII. 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
6 Mitigating factor ¶ 17(b) is not applicable as the Individual does not allege that the answers he provided throughout
the clearance application process were caused or contributed to by advice of legal counsel or other advisor. Similarly,
mitigating factor ¶ 17(f) is not applicable as there is no indication in the record that the information obtained by DOE
derived from an unsubstantiated source or source of questionable reliability, and mitigating factor ¶ 17(g) is not
applicable as there is no allegation of criminal activity herein. Further, I cannot find that mitigating factor ¶ 17(e) is
applicable here because the DOE did not allege that the Individual was vulnerable to exploitation, manipulation, or
duress.
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the security concerns associated with Guidelines E. Accordingly, I have determined that the
Individual should not be granted access authorization. This Decision may be appealed in
accordance with the procedures set forth in 10 C.F.R. § 710.28.
Katie Quintana
Administrative Judge
Office of Hearings and Appeals