TSO-1015

* 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.
July 26, 2011
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
Hearing Officer’s Decision
Name of Case: Personnel Security Hearing
Date of Filing: March 3, 2011
Case Number: TSO-1015
This Decision concerns the eligibility of XXXXXXXXXX (“the Individual”) to hold a
Department of Energy (DOE) access authorization.1 This Decision will consider whether, based
on the testimony and other evidence presented in this proceeding, the Individual’s suspended
DOE access authorization should be restored. For the reasons detailed below, I find that the
DOE should restore the Individual’s access authorization.
I. PROCEDURAL BACKGROUND
The Individual is employed by a DOE contractor, and was granted a DOE access authorization in
1970. DOE Ex. 5. During a routine reinvestigation regarding his security clearance, the
Individual disclosed during an interview with an Office of Personnel Management (OPM)
investigator that he had engaged in physical altercations with his wife. DOE Ex. 10 at 56. In an
August 2010 Personnel Security Interview (PSI), the Individual provided additional information
about those incidents, admitting that he had approximately ten altercations with his wife between
1999 and 2010. DOE Ex. 9 at 26. After the PSI, the LSO referred the Individual to a DOE
consultant-psychiatrist (“the DOE psychiatrist”) for an evaluation. The DOE psychiatrist
evaluated the Individual in October 2010 and issued a report. DOE Ex. 8. After reviewing the
Individual’s personnel security file, the LSO informed the Individual in a February 2011
Notification Letter that there existed derogatory information that raised security concerns under
10 C.F.R. § 710.8 (h) and (l) (Criterion H and L, respectively). See Notification Letter,
February 7, 2011. The Notification Letter also informed the Individual that he was entitled to a
hearing before a Hearing Officer in order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded his request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the DOE counsel introduced ten exhibits into the record and presented the testimony of one
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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witness, the DOE psychiatrist. The Individual, represented by counsel, presented his own
testimony, as well as the testimony of his wife, his supervisor, three current and former
coworkers, and three friends. The Individual also tendered one exhibit. Indiv. Ex. A. See
Transcript of Hearing, Case No. TSO-1015 (cited herein as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including the nature of the conduct at issue, the frequency or recency
of the conduct, the absence or presence of reformation or rehabilitation, and the impact of the
foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c). In considering these factors,
the Hearing Officer also consults adjudicative guidelines that set forth a more comprehensive
listing of relevant factors. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (issued on December 29, 2005 by the Assistant to the President
for National Security Affairs, The White House) (the Adjudicative Guidelines).
Ultimately, the decision concerning eligibility is a comprehensive, common-sense judgment
based on a consideration of all relevant information, favorable and unfavorable. 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the grant
or restoration of access authorization to the individual would not endanger the common defense
and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a).
“Any doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988) (the
“clearly consistent with the interests of national security” test indicates that “security clearance
determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT AND ANALYSIS
A. Whether the LSO Properly Invoked Criteria H and L
1. The Individual’s Physical Altercations with His Wife and Related Facts
The Individual married his wife in 1999. DOE Ex. 9 at 12. He and his wife had “marital
problems” and often argued. Id. at 15. According to the Individual, the arguments led to
physical confrontations, consisting primarily of shoving or hitting on the shoulder,
approximately ten times during their marriage. Id. at 26-27. Most of the incidents happened
early on in their marriage. Id. at 34. The Individual and his wife began attending counseling
together in 2002 to work on their marital problems. Id. at 15. In 2004 or 2005, the Individual’s
counselor determined that the Individual had difficulty managing his anger and recommended
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that the Individual see his primary care physician in order to obtain a prescription for an
antidepressant. Id. at 17, 20-23. The Individual has taken the medication prescribed to him and
has found it helpful in managing his mood and anger. Id. at 23. Since he has been on his
medication, the Individual and his wife have argued, but the arguments have not escalated to
physical altercations as frequently as they had in the past. Id. at 33. The Individual and his wife
last had an argument that turned physical in approximately April or May 2010. Id. at 32.
As noted above, due to concerns raised by the Individual’s admission that he was involved in
physical altercations with his wife, the LSO referred him to the DOE psychiatrist for an
evaluation. Following the October 2010 evaluation, the DOE psychiatrist diagnosed the
Individual with Personality Disorder, Not Otherwise Specified, with Avoidant and Narcissistic
Features. DOE Ex. 8 at 14. The DOE psychiatrist noted that this was an illness or condition
which causes, or may cause, a significant defect in the Individual’s judgment or reliability. Id. at
17.
2. The Associated Security Concerns
Criterion H concerns information that a person has “an illness or mental condition of a nature
which, in the opinion of a board-certified psychiatrist, other licensed physician or a licensed
clinical psychologist causes, or may cause, a significant defect in judgment or reliability.”
10 C.F.R. § 710.8(h); see also Adjudicative Guidelines, Guideline I, ¶ 27. It is well-established
that a diagnosis of a mental health disorder raises security concerns under Criterion H. See id.,
Personnel Security Hearing, Case No. TSO-0903 (2010); Personnel Security Hearing, Case No.
TSO-0880 (2010).2 Based on the DOE psychiatrist’s diagnosis that the Individual meets the
criteria for a personality disorder, I find that the LSO properly invoked Criterion H.
Criterion L concerns circumstances tending to show that the Individual is “not honest, reliable, or
trustworthy, or which furnishes reason to believe that the individual may be subject to pressure,
coercion, exploitation, or duress which may cause the individual to act contrary to the best
interests of the national security.” 10 C.F.R. § 710.8(l). It is well-established that criminal
conduct, such as assault, raises doubts as to an individual’s honesty, reliability and
trustworthiness, and raises security concerns under Criterion L. See Adjudicative Guidelines,
Guideline J, ¶ 30 (“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.”); see also Personnel Security Hearing, Case No. TSO-
0507 (2007). This is true regardless of whether the conduct resulted in formal criminal charges.
Adjudicative Guidelines, Guideline J, ¶ 31(c). Given the Individual’s admission that he has been
involved in incidents of violence with his wife, the LSO had sufficient grounds to invoke
Criterion L.
B. Whether the Individual Has Mitigated the Security Concerns
1. Criterion H – The Individual’s Mental Health Condition
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision
in the search engine located at http://www.oha.doe.gov/search.htm.
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At the hearing, the Individual did not dispute the facts cited in the Notification Letter. He
recognized that he has had a problem controlling his anger in the past and he has taken steps to
address it. Tr. at 145. Prior to the suspension of his access authorization, he saw his counselor
off and on for approximately three years in order to gain insight on how to better communicate
with his wife. Tr. at 145-46. As a result of the suspension of his access authorization and the
related issues, he decided to begin seeing his counselor again in December 2010 for individual
therapy, focusing specifically on addressing his anger issues.3 Tr. at 147. The Individual noted
that he is not proud of his physical altercations with his wife and he will not engage in that
behavior again in the future. Tr. at 148. The Individual has found the counseling sessions
helpful in addressing the causes of his anger problem. For example, he realized that he has
always been shy and, over time, developed an inferiority complex. Tr. at 150. Through his work
with his counselor, he has learned to communicate better, stopping to listen where the other
person is coming from. Tr. at 151-52. As to his marriage, he has learned to calm down and
listen to what his wife is saying, rather than immediately arguing with her. Tr. at 152. The
Individual stated that he is a much happier person now and that his last serious argument with his
wife was in April or May 2010, over one year before the hearing. Tr. at 166. He intends to
continue seeing his counselor as long as the counselor believes it is necessary. Tr. at 156. In
addition to his therapy, he continues to take his antidepressant medication, and finds that it helps
manage his anxiety. Tr. at 164. He intends to keep taking his medication as prescribed. Id.
The Individual’s wife acknowledged that, although the Individual is generally very laid-back,
there have been incidents in the past where the Individual has pushed or shoved her. Tr. at 102-
03. Those incidents were not very frequent, and occurred more often in the beginning of their
marriage. Tr. at 104. She is not afraid of the Individual and she does not believe the Individual
will become physical with her again. Tr. at 111. She stated that the counseling has made “a
huge difference” and that she has noticed positive changes in the Individual’s mood and behavior
since he restarted his counseling. Tr. at 112. For example, she finds that he is much more open
about his feelings, communicates better and apologizes when appropriate, and is generally more
affectionate. Tr. at 105. She no longer feels like she has to “be careful” of what she says to him
and he no longer believes she is criticizing him when she speaks to him. Tr. at 115. She does
not remember the last time she and the Individual had an argument. Id.
In addition to the testimony from the Individual and his wife, several coworkers and friends
testified regarding the Individual’s character and demeanor. None of those witnesses had
concerns regarding the Individual’s behavior, with several describing the Individual as quiet or
laid-back. See, e.g., Tr. at 21, 28, 47, 59, 79. None of the Individual’s co-workers or friends has
seen the Individual lose his temper or behave otherwise inappropriately. Tr. at 16, 35, 49, 55, 73,
86.
After listening to all of the hearing testimony, the DOE psychiatrist presented an updated
opinion. He stated that following his evaluation of the Individual, he had “major concerns”
about the level of the Individual’s anger, particularly toward his wife. Tr. at 187. The DOE
3 The Individual submitted a letter from his counselor confirming that he has engaged in therapy to “work on
managing his anger.” See Indiv. Ex. A. The counselor noted that the Individual “has worked diligently and with
good motivation” and has “made much progress.” Id.
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psychiatrist was pleased to hear that the Individual reengaged in counseling to address his anger
issues and is “highly encouraged” by the work the Individual is doing in therapy. Tr. at 191.
The DOE psychiatrist noted as positive factors the fact that the Individual has not become violent
with his wife in over one year and now has an increased awareness of the “intolerability of
physical violence in the relationship.” Tr. at 192-93. The DOE psychiatrist concluded that,
given the Individual’s greater insight into his condition, his willingness to address it through
counseling, and the progress he has made, the Individual no longer has an illness or condition
which causes or may cause a defect in his judgment or reliability, and the likelihood that he
would manifest such a defect in the future was “low.” Tr. at 194, 198.
After considering the hearing testimony and reviewing the record as a whole, I find that the
Individual has successfully mitigated the security concerns raised by his diagnosis of
“Personality Disorder, Not Otherwise Specified, with Avoidant and Narcissistic Features.”4
I am persuaded by the Individual’s testimony that he has actively engaged in treatment to address
his anger management problem and that, having found the treatment beneficial, he intends to
continue attending his therapy sessions and taking his medication. The Individual has
demonstrated a willingness to address his condition. Based on my observations of the Individual
at the hearing, as well as the testimony of his witnesses, he has clearly gained insight on how to
manage his anger-related issues. This was especially corroborated by the Individual’s wife, who
spoke candidly about the problems they used to experience in their marriage and the marked
improvement in her relationship with the Individual since he began attending counseling.
Finally, the DOE psychiatrist was particularly impressed by the Individual’s progress and
determined that he no longer suffers from a condition that caused or may cause a defect in his
judgment or reliability. Based on the foregoing, I find that the Individual has presented adequate
evidence of rehabilitation and reformation from a mental illness or condition which causes or
may cause a significant defect in his judgment or reliability and has, therefore, mitigated the
Criterion H concerns cited in the Notification Letter. See, e.g., Personnel Security Hearing, Case
No. TSO-0822 (2010) (individual who engaged in counseling consistently and complied with
medications demonstrated low risk of relapse); Personnel Security Hearing, Case No. TSO-0428
(2007) (concerns raised by individual’s mental health condition mitigated by evidence that
individual’s condition was under control and risk of demonstrating a defect in judgment or
reliability in the future was low).
2. Criterion L – The Individual’s Unusual Conduct
The incidents listed in the Notification Letter under Criterion L – the Individual’s physical
altercations with his wife – are directly tied to the concerns regarding the Individual’s mental
condition listed above under Criterion H. Because I have found that the Individual has mitigated
4
The Adjudicative Guidelines set forth several conditions which may serve to mitigate security concerns associated
with an individual’s mental or psychological condition. Those conditions include: “(a) the identified condition is
readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the
treatment plan; (b) the individual has voluntarily entered a counseling or treatment program … and the individual is
currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health
professional; [and] (c) [a] recent opinion by a duly qualified mental health professional … that an individual’s
previous condition is under control or in remission, and has a low probability of recurrence or exacerbation.” See
The Adjudicative Guidelines, Guideline I, ¶ 29.
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the Criterion H concerns pertaining to diagnosis of “Personality Disorder, Not Otherwise
Specified, with Avoidant and Narcissistic Features,” I conclude that he has also mitigated the
related Criterion L concerns.
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criteria H and L of the
Part 710 regulations. I also find that the Individual has presented sufficient information to
resolve those concerns. Therefore, I conclude that restoring the Individual’s suspended access
authorization “would not endanger the common defense and security and would be clearly
consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE
should restore the Individual’s suspended access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: July 26, 2011