PSH-24-0134

*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: June 3, 2024 ) Case No.: PSH-24-0134
)
__________________________________________)
Issued: August 23, 2024
___________________________
Administrative Judge Decision
___________________________
Noorassa A. Rahimzadeh, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (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 or Eligibility to Hold a Sensitive Position.”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.
(June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual’s access authorization
should not be granted.
I. Background
While the Individual is currently seeking employment with a DOE contractor that requires him to
hold an access authorization, the Individual previously sought such a position with a different
prospective employer. Accordingly, as part of the previous clearance process, the Individual signed
and submitted a Questionnaire for National Security Positions (QNSP) in March 2020. Exhibit
(Ex.) 4.
When asked in the 2020 QNSP whether he had “received a written warning, been officially
reprimanded, suspended, or disciplined for misconduct in the workplace” within the last seven
years, the Individual marked “yes.” Id. at 102. He indicated that in February 2019, he was
“[w]arned about signing a visitor into the lobby with unauthorized materials.” Id. at 103. He
explained that although the visitor had been asked to “remove the items[,]” she failed to remove
one unauthorized item, which caused her ejection from the facility. Id. The warning was ultimately
removed from the Individual’s file “after one year with no further incidents.” Id. In April 2020,
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.
2
the Individual underwent an Enhanced Subject Interview (ESI), which was conducted by an
investigator. Id. at 135. Not only did the investigator discuss the aforementioned February 2019
warning with the Individual, but the investigator also confronted the Individual with information
that he “attempted to manipulate a polygraph test in” November 2018. Id. at 135–37.
The Individual signed and submitted a QNSP in July 2023 in connection with his current bid for
employment. Ex. 4. When asked whether he had “received a written warning, been officially
reprimanded, suspended, or disciplined for misconduct in the workplace” within the last seven
years, the Individual marked “no.” Id. at 25. In August 2023, the Individual underwent another
ESI. Id. at 56. During the interview, the Individual was confronted with the February 2019
warning. Id. at 57. The following day, the Individual reached out to the investigator and alerted
him to a previously undisclosed employment-related warning that was issued to the Individual in
June 2023. Id. at 59.
As questions remained after the August 2023 ESI, the Local Security Office (LSO) asked the
Individual to complete a Letter of Interrogatory (LOI), which he signed and submitted in
November 2023. Ex. 5. In the LOI response, the Individual discussed the February 2019 warning,
the June 2023 warning, and the fact that in 2018, he signed a statement indicating that he had
watched videos prior to submitting to the aforementioned polygraph test and had controlled his
breathing during the test. Id. at 1.
The LSO began the present administrative review proceeding by issuing a letter (Notification
Letter) to the Individual in which it notified him that it possessed reliable information that created
a substantial doubt regarding his eligibility for access authorization. In a Summary of Security
Concerns (SSC) attached to the Notification Letter, the LSO explained that the derogatory
information raised security concerns under Guidelines E (Personal Conduct) of the Adjudicative
Guidelines. Ex. 2. The Notification Letter informed the Individual that he was entitled to a hearing
before an Administrative Judge to resolve the substantial doubt regarding his 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 Administrative Judge in
this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the Individual
testified on his own behalf and presented the testimony of one other witness. See Transcript of
Hearing, OHA Case No. PSH-24-0134 (hereinafter cited as “Tr.”). The Individual also submitted
one exhibit marked as Exhibit A. The DOE Counsel submitted five exhibits marked as Exhibits 1
through 5.
II. Notification Letter
Under Guideline E, “[c]onduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual’s
reliability, trustworthiness, and ability to protect classified or sensitive information.” Adjudicative
Guidelines at ¶ 15. Among those conditions set forth in the Adjudicative Guidelines that could
raise a disqualifying security concern are the “[d]eliberate omission, concealment, or falsification
of relevant facts from any personnel security questionnaire . . . or similar form used to conduct
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investigations, . . . determine national security eligibility or trustworthiness, or award fiduciary
responsibilities[,]” and “[d]eliberately . . . concealing or omitting information concerning relevant
facts to an . . . investigator . . . involved in making a recommendation relevant to a national security
eligibility determination[.]” Id. at ¶ 16(a) and (b). Another condition that could raise a
disqualifying concern is,
[c]redible adverse information that is not explicitly covered under any other
guideline and may not be sufficient by itself for an adverse determination, but
which, combined withal available information, supports a whole-person assessment
of questionable judgment, untrustworthiness, unreliability, lack of candor,
unwillingness to comply with rules and regulations, or other characteristics
indicating that the individual may not properly safeguard classified or sensitive
information.
Id. at ¶ 16(d).
Under Guideline E, the LSO alleged that:
1) Although he previously disclosed a February 2019 warning in his March 2020 QNSP, the
Individual failed to disclose the same warning in his July 2023 QNSP. Ex. 2 at 4–5. The
Individual stated that he did not believe he was required to list the warning, “as his
employer removes such [warnings] after one . . . year.” Id. at 4–5.
2) The Individual stated in his LOI response that he discussed his February 2019 warning
during the 2023 ESI “after contemplation, to show he was not hiding anything.” Id.
3) The Individual failed to disclose or discuss any disciplinary action, other than the February
2019 warning, during the August 2023 ESI. Id. However, the Individual called the
investigator a day after the August 2023 ESI to inform the investigator of a June 2023
warning letter. Id. The Individual did not disclose this disciplinary action during the August
2023 ESI “because he thought [the matter] had been resolved.” Id.
4) Investigators confronted the Individual with the allegation that he attempted to manipulate
a polygraph exam in November 2018. Id. The Individual admitted “that he watched videos
on how to take a polygraph on the internet prior to the exam[.]” Id. In the November 2023
LOI response, the Individual indicated that the polygraph examiner felt that “he was
manipulating the polygraph” and that he signed a statement admitting that he had watched
online videos. Id.
5) A source familiar with the Individual indicated that the Individual worked at a family
business, which the Individual failed to disclose on the QNSPs. Id.
The LSO’s invocation of Guideline E is justified.
III. Regulatory Standards
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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 their 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. Id.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
IV. Findings of Fact and Hearing Testimony
February 2019 Warning
In 2020, the investigator noted the circumstances surrounding the February 2019 warning in the
ESI report. The Individual took over for a coworker who went on a break, and accordingly, he was
responsible for security in the lobby area of a facility. Ex. 4 at 135. During that time, a visitor went
through the lobby metal detector. Id. After moving through the metal detector the first time, the
visitor was asked to remove some items from her person and to walk back through the metal
detector, which she failed to do. Id. Another employee subsequently discovered that the visitor had
moved through the lobby with a prohibited item on her person. Id. The Individual was issued a
written warning for this incident. Id. The investigator noted that the Individual indicated that the
warning “was placed in his file for one year.” Id. at 136.
As the February 2019 warning was not disclosed in the July 2023 QNSP, the investigator who
conducted the August 2023 ESI confronted the Individual about the warning. Ex. 4 at 57. The
investigator noted that when confronted with this information, the Individual “agreed[.]” Id. The
report of the ESI indicated that the Individual told the investigator that he failed to disclose this
information on the July 2023 QNSP “due to honest omission, and[] because the issue was resolved
and fully covered during his” 2020 ESI. Id.
The Individual stated in his LOI response that he did not disclose the warning “prior to meeting
with the investigator because [his] employer removes such letters one year after the situation has
been resolved.” Ex. 5 at 2. Accordingly, he did not “believe [the warning] needed mentioning[,]
but [he] brought [the matter] forward after contemplation to show [that he] was not hiding
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anything[.]”2 Id. At the hearing, the Individual testified that he “misunderstood the question” on
the QNSP asking about disciplinary actions and that although the matter had been resolved, he has
now realized that the warning “should have been reported.” Tr. at 36–37, 44, 48–51. He admitted
that it was “a mistake on [his] part.” Id. at 36, 49–50. He also indicated that he did not reach out
to a qualified individual to seek clarification on the question. Id. at 37. Further, the Individual
indicated in his testimony and request for a hearing that he remembered to provide information
regarding the February 2019 warning on his 2020 QNSP because the incident was “relatively
fresh.” Tr. at 39, 49; Ex. 1 at 3. The Individual provided assurances in his testimony that he was
“not trying to hide anything” and understood that investigators were going to contact his employer.
Tr. at 40–41. He stated that he was forthcoming with the investigator who conducted the August
2023 ESI after he was confronted with the 2019 warning. Id. at 56–58. He stated that although he
did not believe the matter “was still relevant,” he “did expect it to possibly come up just because .
. . it had been a topic of discussion before.” Id. at 43–44, 48–49. When asked whether the 2023
QNSP was an autofill document that contained his responses from 2020, the Individual stated that
he “[does not] believe [the 2023 QNSP] was all autofilled [sic]” and recalled “affirmatively
answer[ing] the questions” in the 2023 QNSP. Id. at 38–39.
Regarding the February 2019 warning, a senior official at the Individual’s workplace submitted a
letter dated May 2024, in which he indicated that the Individual is in good standing and that the
2019 “documented oral counseling . . . was not disciplinary in nature, only corrective.”3 Ex. 1 a 2.
As the senior official also testified at the hearing, he was asked to clarify this statement, and he
indicated that the February 2019 warning was more akin to “a coaching situation.” Tr. at 20–21,
29–30.
June 2023 Warning
A day after the initial August 2023 ESI, the Individual reached out to alert the investigator to the
fact that he received a warning from his employer in June 2023. Ex. 4 at 59. The report stated that
the Individual explained the circumstances surrounding the warning, stating that he had resolved
a specific matter during the course of his workday and subsequently reported the matter to a
superior. Id. Days later, he met with two superiors who issued the Individual a written and verbal
warning “for failing to report the issue resolution.” Id. The Individual alerted his superiors that he
did, in fact, report the resolution. Id. The Individual stated that he “mistakenly thought that the . .
. that the warning letter . . . was purged from his file.” Id. But subsequently, the report indicated,
the Individual “determined that the issue [was] still ongoing through an appeals process” between
his union and the employer. Id. The investigator reached out to a source with the employer, who
stated that the Individual “received a verbal warning about a failure to write a report[,]” but the
2 When asked what he meant by his statement indicating that he discussed the matter “after contemplation,” the
Individual testified that he is “not sure why [he] used [the word] ‘contemplation[,]’” and understands that the word
makes it appear as though he was attempting to hide information from the investigator when he had no intention of
doing so. Tr. at 59. He believes that he meant to use the word “contemplation” to describe the conversation he had
with the investigator regarding the June 2023 warning. Id. at 60.
3
The senior official testified that he sees the Individual several times a week in the workplace and trusts the Individual
with the task of hiring and firing specific employees, “a position of trust.” Tr. at 11–12, 17–18. The Individual is also
relied upon to exercise “solid” judgment in his current position. Id. at 18–19. He also described the Individual as an
honest and communicative person. Id. at 17.
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source could not “recall the exact issue around the report.” Id. at 65. The source also noted that the
matter “was a minor issue and it should have been a teaching moment and not a warning.” Id. The
source also indicated that “to the best of his knowledge, [the] issue is not in the [Individual’s] file.”
Id.
In his LOI response and in his testimony, the Individual indicated that he did not mention the June
2023 warning to the investigator until after their meeting because he “believed it had been
resolved.” Ex. 5 at 2; Tr. at 61–62, 65. The Individual stated in his request for a hearing that the
matter of the 2023 warning “was in the grievance process.” Ex. 1 at 3. A meeting had been
scheduled in the matter in 2023, during which his employer was expected to discuss the revocation
of the warning. Ex. 5 at 2; Tr. at 61. As the Individual went on leave the day prior to the meeting,
he was under the belief that the meeting took place without him and that “the issue had potentially
been resolved.” Ex. 5 at 2; Tr. at 61. The Individual contacted the worker’s union involved in the
grievance following his August 2023 meeting with the investigator, and when he learned that the
matter was still pending, he “reached out to the investigator and disclosed the information.” Ex. 5
at 2; Tr. at 61–62, 65, 69–70. He testified that he did not want the investigator to believe he was
attempting to hide anything, and even left the investigator a contact number with his employer. Tr.
at 70. When asked whether he would have informed the investigator of the warning had the matter
been resolved, the Individual stated that it would not have been necessary to do so, as the warning
was “dismissed and removed[,]” and therefore, it would have been as though he “never actually
got any discipline[.]” Tr. at 62. Further, he was under the belief that when he initiated the grievance
process, the issuance of the warning had been halted, pending the final outcome of the grievance
process. Id. at 62–68. He stated that he “[was not] really thinking” about the possibility of his
employer informing the investigator of the June 2023 warning. Id. at 69.
The senior official who testified on behalf of the Individual stated that the “documented counseling
letter issued to [the Individual] in June 2023 . . . was the lowest level of discipline according to”
the employer’s policy, and after the Individual explained his position on the matter, the letter was
dismissed in late August 2023. Ex. 1 at 2; Tr. 23–26. The senior official determined that the
discipline should no longer be in effect. Tr. at 26.
2018 Polygraph Test
As the 2020 ESI report indicated, the Individual was confronted by the investigator that he
attempted to manipulate a polygraph test in 2018. Ex. 4 at 137. The polygraph test was the last
step in the hiring process promulgated by a prospective employer. Id. The Individual told the
investigator that he was nervous about the polygraph and that because he “lack[ed] . . . knowledge”
about the test, he “watched videos on how to take a polygraph [test] on the internet[.]”4 Id. The
ESI report indicated that the test was inconclusive, as the polygraph examiner “could not get a read
on [the Individual] due to [his] breathing.” Id. To get a second chance at the polygraph test, the
Individual “admitted to [a] statement” indicating that he had “watched a video to attempt to
manipulate the polygraph” test. Id. The Individual denied watching a video “to learn how to lie on
4 At the hearing, the Individual said that he did not know “what the operating procedures were” or what he was
“supposed to do[,]” so he “did look up a video or two on . . . what they monitor and how they hook you up.” Tr. at 75.
He explained that he “tried to be as prepared as possible . . . especially for job interviews or things like that.” Id.
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a polygraph” and stated that he felt “pressured” into admitting that he had attempted to manipulate
the test, something he wishes that he did not do in hindsight. Id.
In his LOI response, the Individual stated that he was “unsure why the [polygraph] test results read
[as] inconclusive.” Ex. 5 at 1. He explained that he was generally nervous, and although the exam
was taking longer than expected, “the [polygraph] examiner was persistent in pressuring [him] to
complete the examination.” Id. He stated that the examiner kept stating “that he could not establish
a baseline for [his] test because [the Individual] was nervous[.]” Id. The Individual explained in
the LOI response and during the hearing that he was focusing on his breath to remain calm. Ex. 5
at 1; Tr. at 77. He was told by the polygraph examiner that this practice precluded the establishment
of a testing baseline, and the polygraph examiner suggested that the Individual was “manipulating
the polygraph” test. Ex. 5 at 1; Tr. at 77. Accordingly, after five hours of testing, the polygraph
examiner determined that the test results were “inconclusive.” Ex. 5 at 1. The Individual stated in
his LOI response that he answered all questions honestly, and when asked by the polygraph
examiner, he admitted that he had “watch[ed] videos” for the purpose of understanding the
polygraph test. Id. At the end of the examination, the polygraph examiner “had [the Individual]
sign a statement about [his] breathing and videos” and told the Individual that signing the statement
“would further [his] chances of receiving a second polygraph” test.5 Id. The second test was never
forthcoming as the first exam was considered “unfavorable.” Id. The Individual testified that the
videos did not teach him how to control his breathing. Tr. at 78.
Unreported Work
During the 2020 investigation, a college friend of the Individual told an investigator that the
Individual previously worked in a family-owned business. Ex. 4 at 148. The friend explained that
through the Individual’s work with the family business, the Individual would occasionally bring
him food. Id. Information pertaining to this work was not disclosed in either QNSP. Id. at 23–29,
101–07. The Individual testified that he has “worked for [his] family [his] entire life[,]” as his
family owns a small business. Tr. at 82. Accordingly, “anything that happens [at the business] is
just a chore[.]” Id. at 82; Ex. 4 at 3–4. To live in the family home, he was expected to “help out”
and “working in the shop was no different” than performing other tasks. Tr. at 82. He has not
worked there for some time, but he would “work in [the] family shop” when he was home from
college, and over the summer, he would secure additional employment. Id. He felt it was no
different than “being asked by [his] parents to clean around the house[.]” Id. at 82–83. The
Individual was also never financially compensated for the labor he performed for the family
business. Ex. 4 at 1.
V. Analysis
The Adjudicative Guidelines provide that conditions that could mitigate security concerns under
Guideline E include:
(a) The individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
5 The Individual stated that he “was very naïve in signing that paper[,]” as he did not think about the implications of
the act. Tr. at 79. He feels that he should not have signed the document. Id.
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(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.
Adjudicative Guidelines at ¶ 17.
The QNSP asks each applicant to “list all . . . employment activities, including unemployment and
self-employment, beginning with the present and working back [ten] years.” Ex. 4 at 23. The
QNSP does not provide a definition for the term “employment.”6 Id. Regarding the matter of
unreported “employment,” as the Individual explained, it was labor that he performed for a family
business without compensation. He explained that he was raised believing this labor was a regular
chore to be performed, and the price of the privilege of living in the family home. Based on the
facts before me, this work would likely not constitute a period of unemployment as contemplated
by the QNSP, it does not constitute self-employment, and whether it constitutes employment is
debatable, as the Individual was not paid for his labor. Notably, while the question asks individuals
to list periods of unemployment, it does not specifically ask for information pertaining to
uncompensated work. The Individual’s failure to disclose the work he performed for the family
business is reasonable under the aforementioned circumstances, and I am convinced that the
Individual sincerely did not believe that his work for the family-owned business constituted
6 Merriam-Webster Dictionary defines employment as “an activity or service performed for another especially for
compensation or as an occupation.” “Employment.” Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/employment. Accessed 21 Aug. 2024.
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employment activity as contemplated by the applicable question in the QNSP. For the
aforementioned reasons, I believe that the Individual did not recognize the nature of his labor as
being an employment activity, but rather, believed it to be a routine chore imposed on him by his
family. Accordingly, I do not believe that the Individual deliberately omitted or concealed this
employment from the QNSPs. However, even if the Individual deliberately omitted this
information from the QNSPs, the omission under these specific circumstances was so minor that
it does not cast doubt on his good judgment, reliability, or trustworthiness.
While it would have been ideal for the Individual to look into the matter of the June 2023 warning
to determine whether it was still pending or fully resolved through the grievance process prior to
completing the QNSP, he did ultimately learn of the particulars of the matter following the 2023
ESI. He was not confronted with the June 2023 warning during the ESI. He did, upon learning that
the matter had not been resolved, reach out to the investigator and properly disclose the
information. He also testified that he had not paid any thought to the possibility that his employer
might disclose the information to the investigator and there is nothing in the record before to
suggest that he had disclosed the information to the investigator in fear that his employer might
provide this information to his detriment. Although the information should have been disclosed on
the 2023 QNSP, I find that the Individual has mitigated the stated concern pursuant to mitigating
factor (a), as the record shows that he made prompt and good faith efforts to correct the omission.
Although any allegation that the Individual attempted to thwart or manipulate a polygraph test is
concerning, I find that the Individual’s explanation that he was focusing his breathing for the sole
purpose of calming himself down is credible. Controlling his breath is a logical solution to the
polygraph examiner’s concern that he could not establish a baseline because the Individual was
nervous. I also believe the Individual’s explanation that he did not watch online videos for the
purpose of thwarting or manipulating the polygraph test. As indicated above, I am not convinced
that the Individual was controlling his breath for the purpose of manipulating the test, and this
“technique” was the only manipulation tactic alleged. Presumably, the Individual would have
learned at least more than one technique to manipulate a polygraph test had he watched online
videos for this purpose. Additionally, the fact that the Individual signed a letter admitting to certain
behaviors does not give me pause, because in doing so, he was attempting to secure a second
chance at taking the polygraph test. Further, the test took place in 2018, approximately five years
prior to the hearing. Years have passed since the Individual submitted to the test and there has not
been any allegation of any similar behavior since. I find that enough time has passed, and the
circumstances were unique enough to not cast doubt on the individual’s reliability, trustworthiness,
or good judgment.
A QNSP is an important tool in establishing whether an individual is fit to hold a security
clearance. Any individual “seeking a security clearance should be well aware of the need for
complete, honest and candid answers to DOE questions. Therefore[,] when completing a QNSP
such an individual should err on the side of providing too much rather than too little information.”
Personnel Security Hearing, OHA Case No. TSO-0023 at 30–31 (2003). While the senior
official’s claim that the February 2019 warning was “corrective” in nature and more akin to a
“coaching situation” gives me pause, I am concerned by the fact that the Individual read the
question regarding disciplinary actions and provided information regarding the February 2019
warning on the 2020 QNSP, but not the 2023 QNSP. Not only did the senior official’s explanation
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of the matter come approximately one year after the Individual completed the 2023 QNSP, it
appears from the record that the Individual understood the February 2019 matter to be a warning,
as he indicated in his 2020 QNSP that he was “[w]arned about signing a visitor into the lobby with
unauthorized materials.” Ex. 4 at 103. In a manner consistent with a disciplinary action in general,
the written February 2019 warning was placed in the Individual’s file for one year. The evidence
indicated that at the time he was completing the 2023 QNSP, he was under the firm belief that the
February 2019 warning was a disciplinary action. While the Individual disclosed his belief that the
matter had been resolved, as the warning had been removed from his file, I am not convinced by
this explanation. Even if the Individual provided evidence to corroborate the assertion that the
warning had been removed from his file, the relevant question on the QNSP simply asks whether
an individual had “received a warning, been officially reprimanded, suspended, or disciplined for
misconduct in the workplace[.]” Ex. 4 at 24–25. There is nothing in this question that makes any
such distinction about whether a warning had been removed from one’s file. A simple reading of
the question indicates that the Individual should have disclosed the February 2019 warning on the
2023 QNSP. Further, the Individual recognized this fact that it was a mistake to omit the February
2019 warning from the 2023 QNSP. Tr. at Id. at 36, 49–50. Finally, the Individual’s failure to
disclose the February 2019 warning on the 2023 QNSP is materially different than his failure to
disclose his prior work experience. The fact remains that the Individual knew that the February
2019 warning was a warning, which is why he disclosed it on the 2020 QNSP when asked about
any warnings within the past seven years. In contrast, the Individual did not conceive of the labor
he performed for the family business as employment activity primarily because he was not paid
for his labor, and compensation for one’s labor is a traditional feature of employment. The
evidence strongly suggests that the legitimate confusion that existed when the Individual was
answering questions pertaining to prior employment did not exist when he was answering
questions pertaining to disciplinary actions within the past seven years. As the omission occurred
in the context of the clearance process, I cannot conclude that it was minor. As the omission
occurred in 2023, I cannot conclude that it occurred in the remote past. As the omission was
ongoing until the Individual was confronted with the warning, I cannot conclude that it was
infrequent. Lastly, I cannot conclude that the omission occurred under unique circumstances as
completing a QNSP is a standard step in acquiring and maintaining an access authorization. The
Individual has failed to mitigate the stated concerns pursuant to mitigating factor (c).
As the Individual did not come forward with the February 2019 warning prior to being confronted
by the investigator in August 2023, mitigating factor (a) is not applicable. There is no information
in the record before me that indicates the Individual reached out to legal counsel or a person with
professional responsibilities for advising or instructing the individual specifically concerning
security processes, resulting in the aforementioned omissions or behavior. Mitigating factor (b) is
not applicable. I do not have any information before me that indicates the Individual obtained
counseling in connection with the alleged behavior. Mitigating factor (d) is not applicable. The
SSC did not allege any vulnerability to duress or blackmail, and accordingly, mitigating factor (e)
is not applicable. The Individual did not assert that the information was unsubstantiated or from a
source of questionable reliability. Mitigating factor (f) is not applicable. As the SSC does not allege
any association with persons involved in criminal activities, mitigating factor (g) is not applicable.
VI. Conclusion
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For the reasons set forth above, I conclude that the LSO properly invoked Guideline E of the
Adjudicative Guidelines. After considering all the evidence, both 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 concerns set forth in the SSC. Accordingly, the Individual has not demonstrated that
granting his security clearance would not endanger the common defense and security and would
be clearly consistent with the national interest. Therefore, I find that the Individual’s access
authorization should not be granted. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Noorassa A. Rahimzadeh
Administrative Judge
Office of Hearings and Appeals