TSO-1002

* 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.
May 27, 2011
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer’s Decision
Name of Case: Personnel Security Hearing
Date of Filing: February 2, 2011
Case Number: TSO-1002
This Decision considers the eligibility of XXXXXXX XXXXXXX (hereinafter referred
to as “the individual”) to hold an access authorization under the regulations set forth at
10 C.F.R. Part 710, entitled “Criteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.” As explained below, it is my
decision that the individual should not be granted an access authorization.
I. BACKGROUND
The individual held a security clearance from 1990 until 2002 while working for
government contractors and the federal government. In 2010, his present employer, a
DOE contractor, requested DOE access authorization for the individual. Based on issues
contained in the individual’s security file, the Local Security Office (LSO) conducted a
Personnel Security Interview with the individual in September 2010 (the 2010 PSI, DOE
Ex. 10). In November 2010, a DOE-consultant Psychiatrist evaluated the individual, and
memorialized her findings in a Report of Psychiatric Evaluation (the 2010 Report, DOE
Ex. 4).
In December 2010, the LSO issued a Notification Letter to the individual, together with a
statement (Enclosure 2) setting forth the information that created a substantial doubt
about the individual’s eligibility to hold a DOE security clearance. (DOE Ex. 1).
Specifically, the LSO identifies information indicating that in November 2010, a DOE-
consultant Psychiatrist concluded that the individual met the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) criteria for
Adult Antisocial Behavior, which is an illness or condition which causes, or may cause, a
significant defect in his judgment or reliability. This diagnosis raises a security concern
under 10 C.F.R. § 710.8(h) (Criterion H). Enclosure 2, DOE Ex. 1.
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In addition, the LSO finds that the individual has engaged in unusual conduct which has
raised concerns under 10 C.F.R. § 710.8(l) (Criterion L) that he is not honest, reliable and
trustworthy. In this regard, the LSO alleges that the individual admitted that he altered
court documents in order to convince a woman that he was divorced, and that he lied
about this at a 2001 Personnel Security Interview (the 2001 PSI). The LSO also alleges
that the individual initially failed to disclose his complete history of extramarital affairs at
his 2010 psychiatric assessment, and that at his 2010 PSI, he admitted that he paid hush
money and attempted to intimidate another DOE employee in an effort to keep her from
disclosing their affair. Finally, the LSO alleges that he has engaged in criminal conduct
by being married to two women at the same time. Id.
In January 2011, the individual, who is represented by counsel, requested a hearing
(hereinafter “the hearing”) to respond to the concerns raised in the Notification Letter.
On February 2, 2011, the Office of Hearings and Appeals Director appointed me the
Hearing Officer in this case. At the hearing I convened in this matter in March 2011, I
received testimony from eight persons. The DOE presented the testimony of the DOE-
consultant Psychiatrist. The individual testified and presented the testimony of a
Psychiatrist who evaluated the individual for diagnostic purposes (the individual’s
Evaluating Psychiatrist). In addition, the individual presented the testimony of his
supervisor, a current co-worker, a former co-worker, a long-time business associate/co-
worker, and an employee of his church. Discussion at the hearing centered on the
incidents in the individual’s life that formed the basis for the LSO’s Criteria H and L
concerns, as well as the individual’s behavior in the workplace and in his social life.
II. APPLICABLE STANDARDS
A DOE administrative review proceeding under this Part is not a criminal case, in which
the burden is on the government to prove the defendant guilty beyond a reasonable doubt.
In this type of case, we apply a different standard, which is designed to protect national
security interests. A hearing is “for the purpose of affording the individual an
opportunity of supporting his eligibility for access authorization.” 10 C.F.R.
§ 710.21(b)(6). The burden is on the individual to come forward at the hearing with
evidence to convince the DOE that granting or restoring his access authorization “would
not endanger the common defense and security and would be clearly consistent with the
national interest.” 10 C.F.R. § 710.27(d). This standard reflects a presumption against
granting or restoring a security clearance. See Department of Navy v. Egan, 484 U.S.
518, 531 (1988) (the “clearly consistent with the interests of national security test” for the
granting of 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).
III. ANALYSIS OF TESTIMONY AND FINDINGS
A. Criterion H Concerns
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In her 2010 Report, the DOE-consultant Psychiatrist concluded that the individual met
the DSM-IV-TR criteria for Adult Antisocial Behavior, which is a mental condition
which causes, or may cause, a significant defect in his judgment or reliability. As a basis
for this diagnosis, the DOE-consultant Psychiatrist found that although the individual was
married from 1978 until 2009, he engaged in four extra-marital affairs during the period
from 1992 until 2009, and he admitted that the first, second and fourth of these affairs
included extra-marital sexual relations. With respect to the third affair, the individual
admitted to the DOE-consultant Psychiatrist that he forged a divorce decree in an attempt
to convince the woman that he was divorced. With respect to the fourth affair, the
individual admitted that he entered into a bigamous marriage with his second wife
because she was uncomfortable having him in her house with her teenage daughter. The
bigamy ended when the individual’s first wife discovered the bigamy and divorced him.
2009 Report at 7-8. The DOE-consultant Psychiatrist found that individual displayed a
“series of similar self-serving deceitful behavior from 1990 until 2009, a span of almost
two decades in his mid-adult life.” Id. at 11. She concluded that the individual did not
meet the criteria for a diagnosis of Antisocial Personality Disorder because his
deceitfulness and self-serving lies appear to have been circumscribed to only one area of
his life (infidelities) and therefore cannot be considered pervasive. Id. However, she
found that his deceitfulness concerning his infidelities over several years is clinically
significant and supported a diagnosis of Adult Antisocial Behavior. She concluded that
the individual’s adult antisocial behavior predisposes the individual to breaking the law
or being unable to follow rules in general, as evidence by his extra-marital affairs, his
forging of a legal document, and his bigamy. Id. at 11-12.
The individual contested the DOE-consultant Psychiatrist’s finding that he has a mental
condition that may cause a significant defect in his judgment and reliability, and his
Evaluating Psychiatrist supported the individual’s contention.
1. The Individual’s Testimony Concerning his Affairs, his Bigamous Marriage, and
his Current Marital Relationship
At the hearing, the individual testified that he married his first wife in 1978 and that they
raised a family. He stated that over time, he and his first wife grew apart because he was
away from home on business and had a lot of outside interests, and she had her own job.
He first became involved in an extra-marital affair in 1992. TR at 42-43, 51. He stated
that his first affair began after he and a secretary in his office were both fired due to the
misuse of work e-mails by other employees. He testified that his first wife became aware
of this affair before it ended in early 1993. TR at 50-51. He stated that in 1999, he began
a second affair with another employee at the DOE facility where he was employed, and
that this affair lasted for several years. TR at 52. He testified that his first wife became
aware of the affair and asked him to end it, but that he chose to continue the affair. He
stated that the affair “wasn’t [a] priority, and it wasn’t something that happened very
often, so it just continued to perk along.” TR at 53. During this period, he attempted to
avoid a “final blowup” with his first wife, who he described as “content to let things work
the way they were working.” Id.
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The individual stated that in 2000, he accepted a job and moved to another state, while
his first wife remained behind to permit the children to finish junior and senior high
school. He stated that while he and his first wife did not see each other very often, they
did not consider themselves in a marital separation. TR at 55. He stated that he met the
woman involved in his third affair on a business trip, and that she then visited him in the
city where he was living. TR at 56-57. He stated that the relationship was never
consummated, but that it was more than just a platonic friendship. TR at 89. He stated
that he told the woman that he was divorced, and that she asked to see his divorce decree.
He stated that he then “dummied up” a divorce decree and showed it to her. TR at 60.
He testified that he did not create the false divorce decree in order to entice the woman
into a sexual relationship, but to support the story he had told her, to maintain a long
distance relationship with her, and to avoid a “blowup”. TR at 61.
However, while staying at his residence during a visit, the woman discovered that the
individual was still married and was involved in another affair. TR at 59-60, 64. She
confronted the individual and threatened to tell his first wife. The individual then gave
her a check for $400 to cover her expenses and her inconvenience in visiting him.
But I called it hush money because I don’t know any other way to phrase
that. I mean, she was raising Cain in my condo. She wasted all that
money to come out there and see me, and I turned out, you know, not be
telling her the truth. So I was just going to give her what I could give her
and let her go back home.
TR at 62. He stated that the woman subsequently called him, told him that she had taken
the fraudulent divorce decree and other personal documents from his apartment, and
threatened to provide the documents to his first wife and his girlfriend. The individual
stated that he pleaded with her to return the documents, and when she stopped taking his
calls, he made statements to “another lady in her office” to relay to the woman. TR at 64.
He said that one statement was a warning that sending the documents would affect her
security clearance, and the other statement was that the woman would have “blood on her
hands” if she sent the documents. Id. The individual explained that he believed that if
security learned that the woman had stolen documents from his apartment, it would
reflect poorly on her security clearance. The other comment was intended to convey that
the individual’s family “basically would be destroyed through her actions.” TR at 65.
The individual denies that the statements were intended as a threat of “any kind of harm,
or really the loss of her clearance.” Id.
The individual stated that the co-worker reported his statements to security, and the
individual was interviewed about his extra-marital affairs. TR at 65-66. He stated that at
his 2001 PSI, he lied about the fraudulent divorce decree when he denied that he altered
court documents. He said that at that time he “wasn’t sleeping much” because of his
problems with the woman, his job, and his family. TR at 77. He said that he lied because
he wanted “to just make it go away as quickly as I could.” Id. He said he did not realize
that the fraudulent document would show up at his divorce hearing. Id. He admitted
that the lie “was a stupid thing to do” and asserted that he “tried to make it right” when he
admitted to creating the fraudulent divorce decree at his 2010 PSI. TR at 77-78. He
asserted that he would not lie again in such a situation because he has “learned his lesson
about that” and because he is a different person than he was ten years ago. TR at 78.
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The individual stated that after his employer was made aware of these issues in 2001, the
individual concluded that his employer had lost faith in him, and that he chose to resign
and to move home. TR at 66. The individual stated that as a result of receiving a copy
of the fraudulent divorce decree, his marriage became very tenuous, and there was little
communication with his first wife. He testified that he was trying to avoid the conflict
that comes with filing for divorce. TR at 68.
The individual testified that in 2005, he met his second wife. He stated that it was a
business relationship for quite a while, and then it turned into a personal relationship
involving dating, and eventually into a real affair. TR at 69. The individual stated that
his second wife knew that he was married, but she would not live with him outside of
marriage. In December 2007, he married his second wife without divorcing his first wife,
and he remained married to both women for more than a year. He stated that he would
live with his first wife only one or two days a week, because he was working in another
city. He stated that his first wife discovered the situation at Thanksgiving 2008, and
shortly thereafter filed for divorce, which was finalized in 2009. TR at 69-73. The
individual stated that engaging in bigamy was “the most stupid thing I’ve ever done”, but
that his overriding concern was to keep both women content.
You know, in the back of my mind I figured it was probably criminal, but
that was, to me, not as important as keeping these two women happy.
TR at 71-72.
The individual testified that he remains married to his second wife, and that they have a
happy and committed relationship. He stated that, aside from his first wife, he has had no
relationships with other women since he met his second wife. He testified that he and his
second wife are active in church and mission activities. He asserted that the “phase of
my life when I needed . . . those relationship[s] outside my marriage [are] over and done
with.” TR at 75.
The individual testified that since the 2009 divorce, he has maintained good relationships
with his children, he and his first wife “are still civil to each other”, and his second wife
and her family are happy. TR at 71. However, he presented no corroborative testimony
from any of these persons. Most of his witnesses were supervisors and co-workers whose
knowledge of his marital issues was indirect and limited. The only witness with any
direct knowledge of his marriage was the technical director of the individual’s church.
He testified that he has seen the individual and his wife at church services almost every
weekend for the last three years. He described them as solid, stable, Christian people,
and he stated that he had no knowledge of any inappropriate, extra-marital conduct by the
individual. TR at 44-49. I find this testimony to be of little value in assessing the
individual’s honestly and fidelity in his current marriage. The individual’s supervisor, his
long-time business associate/co-worker, his former co-worker and his current co-worker
all testified that the individual is personable, a good worker, and that they trust his
honesty and judgment in the workplace. None of these professional associates indicated
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any direct knowledge of the individual’s personal life and social contacts. TR at 10-21,
22-32, 33-41 and 81-86.1
2. Opinions of Medical Experts Concerning the Individual’s Mental Health and
Prognosis
The individual’s Evaluating Psychiatrist testified that he evaluated the individual in
March 2011.2 He stated that his evaluation of the individual led him to agree with the
DOE-consultant Psychiatrist that the individual does not have a psychiatric disorder as
they are outlined in the DSM-IV-TR. However, he disagreed with the DOE-consultant
Psychiatrist’s conclusion that the individual met the DSM-IV-TR criteria for Adult
Antisocial Behavior, a mental condition that could affect the individual’s judgment and
reliability. The Evaluating Psychiatrist stated that the examples of Adult Antisocial
Behavior provided in the DSM-IV-TR, i.e,, professional thieves, racketeers and dealers in
illegal substances, indicate ongoing criminal activity. He opined that the individual’s
single instance of criminal bigamy was insufficient to establish a pattern of failing to
conform to social norms with respect to lawful behavior. TR at 133-136. He stated that
the individual’s reported involvement in his children’s activities, his regular payment of
alimony to his first wife, and his current involvement in mission activities are “just things
you don’t see with anti-social behavior.” TR at 138.
The Evaluating Psychiatrist testified that the individual’s deceitful behavior took place
because he was conflicted about how to deal with his marital problems. TR at 135-136.
He stated that the individual wanted calm and peace with his first wife, and he wanted to
maintain a relationship with his children that would be threatened by a divorce, so the
individual was unable to initiate a divorce. TR at 137-138. The Evaluating Psychiatrist
acknowledged that the individual had deficits in judgment in the past, particularly in the
his relationships with women. He stated that he believed that the individual now had
learned from experience that his fear of divorce was unfounded. TR at 141. He opined
that the individual also is less likely to engage in deceitful behavior with women because
he is now in a marriage relationship that he finds more satisfying, and he is less likely to
get lonely and seek out other women. TR at 146.
After listening to the testimony at the hearing, the DOE-consultant Psychiatrist stated that
she remained confident of the accuracy of her diagnosis under the DSM-IV-TR that the
individual has a mental condition, Adult Antisocial Behavior, that causes him to engage
in deceitful behavior in certain circumstances. TR at 154-156. She stated that the
extreme examples of anti-social behavior in the DSM-IV-TR cited by the Evaluating
Psychiatrist were enumerated as examples because they are blatant and easy to
understand, but she believed that viewing the individual’s pattern of deceitfulness as anti-
1 The individual also submitted letters of recommendation from professional associates, copies of his
resume, performance appraisals, and professional awards. See Individual’s Exhibits A to N. These
exhibits support the individual’s assertion that he is a talented employee with a very good professional
reputation.
2 A March 28, 2011, letter from the Evaluating Psychiatrist indicates that his interview with the individual
lasted for two hours and thirty seven minutes and was focused on understanding the individual’s behavior
primarily as it related to his interactions with women. It also indicates that the Evaluating Psychiatrist
reviewed the Notification Letter and the DOE-consultant Psychiatrist’s Report. See Individual’s Exhibit O.
The Evaluating Psychiatrist testified that he did not interview the individual’s second wife. TR at 153.
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social behavior is an appropriate clinical interpretation. TR at 156-157. She testified that
she sees the individual as in need of therapy to address his “long-standing, unhealthy
defense mechanisms” that have caused him to lie and to commit bigamy in order to avoid
marital conflict.
The DOE-consultant Psychiatrist stated that she was not convinced that the individual’s
marriage to his second wife has lowered the risk that the individual will engage in future
deceitful or illegal behavior. She noted that the testimony of the individual indicated that
his second wife persuaded the individual to marry her when she knew that he was still
married to his first wife and would be committing bigamy. TR at 160. She also noted
that the Evaluating Psychiatrist stated in his letter that the individual would benefit from
counseling to address conflict avoidant behavior. TR at 158, citing Individual’s
Exhibit O at 3. She opined that in the absence of therapy to address his maladaptive
behaviors, she could not say with clinical confidence that those behaviors are less likely
to occur in the future. TR at 159. The DOE-consultant Psychiatrist acknowledged that
since the individual’s first wife discovered his bigamy in 2008, the individual does not
appear to have been engaged in deceitful behavior. She stated that she did not consider
two and one-half years of apparent honesty and fidelity as sufficient to lower the risk of
the individual relapsing into a long term pattern of marital deceitfulness that spanned
from 1992 until 2008. TR at 189. She also noted that the individual’s job involves a
physical separation from his second wife, which is similar to the situation that prevailed
during his first marriage. TR at 191.
3. The Individual’s Current Mental Condition and his Risk of Exercising Poor
Judgment in the Future
In the administrative review process, it is the Hearing Officer who has the responsibility
for forming an opinion as to whether an individual has been properly diagnosed with a
mental condition. See 10 C.F.R. § 710.27. Hearing Officers properly give deference to
the expert opinions of psychiatrists and other mental health professionals regarding these
diagnoses. See, e.g., Personnel Security Hearing, Case No. TSO-0401 (2006). In cases
like this one, where the medical experts disagree concerning the diagnosis of a mental
condition, the DOE Hearing Officer must make a determination based on the available
evidence.
As an initial matter, I find that the evidence presented by the individual at the hearing
was not sufficient to support his assertions that his 2009 divorce from his first wife will
enable him to avoid future deceitful behavior in his marriage relationship, and that his
second marriage is happy and stable. As noted above, the supporting evidence and
testimony at the hearing largely addressed the individual’s reputation in the workplace,
and did not address the concerns arising from the individual’s pattern of deceitful and
illegal behavior in his married life. At our March 15, 2011, conference call, I advised the
individual’s counsel that he should seriously consider presenting the testimony of the
individual’s second wife to address the individual’s honesty and reliability. See also
March 28, 2011, e-mail to the individual’s counsel. In the absence of her testimony, I
find that the individual has not sufficiently supported his contentions that his second wife
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was aware the he remained married to his first wife for more than a year after their
marriage, or that the individual is being honest in his second marriage.
As discussed above, at the hearing, the DOE-consultant Psychiatrist reaffirmed her initial
diagnosis that the individual suffers from a mental condition that has resulted in deceitful
behavior over an extended period of time. The individual’s Evaluating Psychiatrist
disagreed with the DOE-consultant Psychiatrist’s diagnosis and argued that the
individual’s deceitful behavior was a marriage-related issue that was resolved by his 2009
divorce. In this instance, I find that the record provides stronger support for the DOE-
consultant Psychiatrist’s position that the individual suffers from a mental condition that
makes him vulnerable to deceitfulness and illegal activity. Not only did the individual
repeatedly deceive his first wife about his extra-marital affairs, he also admitted hiding
his marital status from a woman with whom he was romantically involved. He later
made intimidating statements and a monetary payment in an effort to prevent her from
disclosing the affair. I also find that the individual’s behavior in forging a divorce decree
and later denying this act to DOE Security, as well as his substantial period of bigamy,
was not given sufficient weight by the individual’s Evaluating Psychiatrist. Forging a
document purporting to contain his first wife’s signature and altering her legal status is a
serious matter, and denying this action at his 2001 PSI violated his commitment to the
DOE and subjected him to criminal sanctions. Nor do I find that the Evaluating
Psychiatrist provided a convincing basis for his conclusion that the individual’s acts of
poor judgment are unlikely to occur as a result of his divorce and his current marriage. I
share the concerns of the DOE-consultant Psychiatrist about the judgment of his second
wife in allegedly insisting that the individual commit bigamy, and I note that the
individual’s assertion that she was knowledgeable about his ongoing marriage is
unsupported. Finally, I agree with the DOE-consultant Psychiatrist that the individual
has not yet engaged in the counseling necessary to address his emotional issues and
patterns of deceit. Accordingly, I find that the individual has not yet mitigated the DOE’s
Criterion H concerns. See Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (Adjudicative Guidelines), Guideline I, Paragraph 29, at
http://www.archives.gov/isoo/pdf/hadley-adjudicative-guidelines.pdf (December 29,
2005).
B. Criterion L Concerns
As stated above, the Notification Letter also sets forth the following Criterion L security
concerns: (i) the individual stated at his 2001 PSI that he did not alter a court document
(i.e., forged a divorce decree), and at his 2010 PSI, he admitted that the earlier statement
was false and that he did indeed alter the court document; (ii) he initially failed to
disclose his complete history of extramarital affairs at his 2010 DOE psychiatric
evaluation; (iii) in 2001, he paid a woman $400 in “hush money” and later attempted to
intimidate her into not disclosing their affair; and (iv) at his 2010 PSI, he admitted to
having been married to two women at the same time even though he knew that this
activity was illegal. Based on the DOE-consultant Psychiatrist’s testimony that the
individual’s omissions to his history at their interview may have been oversights by the
individual, I find that the second Criterion L concern has been mitigated. TR at 177-178.
However, I find that the other listed actions raise serious Criterion L concerns that have
not been resolved. With respect to the false statement made at the 2001 PSI, I note that
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the individual admitted to forging the divorce decree at his 2010 PSI only after the LSO
informed him that the LSO was in possession of the forged document. DOE Exhibit 10
at 26-30. Accordingly, this forced admission does not mitigate his earlier falsification.
See Adjudicative Guidelines, Guideline E, Paragraph 17(a).
As discussed above, the individual has not presented corroborative testimony and
evidence to confirm his assertions that he is now in a stable marriage relationship that is
free of deception and where he is not motivated to engage in extra-marital activity. Nor
has he engaged in therapy or counseling that both his Evaluating Psychiatrist and the
DOE-consultant Psychiatrist have indicated would be helpful in addressing the emotional
issues that have resulted in his unusual conduct and illegal activity in the past.
Accordingly, there is no substantial evidence in the record to confirm that the individual
is now demonstrating greater emotional stability in his family life, and has established a
therapeutic relationship that could assist him in dealing with future domestic conflicts in
a responsible manner. Therefore, I cannot find that the past conduct that gave rise to the
Criterion L concerns is unlikely to recur, and that the individual has successfully changed
his behavior. See Adjudicative Guidelines, Guideline E, Paragraph 17(g).
IV. CONCLUSION
For the reasons set forth above, I find that the individual was properly diagnosed with
Adult Antisocial Behavior, and that this mental condition is subject to Criterion H.
Further, I find that this derogatory information under Criterion H has not been mitigated
sufficiently at this time. I further find that the individual has not mitigated the DOE’s
Criterion L concerns. Accordingly, after considering all of the relevant information,
favorable or unfavorable, in a comprehensive and common-sense manner, I conclude that
the individual has not demonstrated that granting him an access authorization would not
endanger the common defense and would be clearly consistent with the national interest.
The individual or the DOE may seek review of this Decision by an Appeal Panel under
the regulation set forth at 10 C.F.R. § 710.28.
Kent S. Woods
Hearing Officer
Office of Hearings and Appeals
Date: May 27, 2011