TSO-1103

* 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.
DEPARTMENT OF ENERGY
OFFICE OF HEARINGS AND APPEALS
In the Matter of Personnel Security Hearing )
)
Filing Date: September 1, 2011 )
) Case No.: TSO-1103
)
___________________________________ )
Issued: February 28, 2012
_______________
Hearing Officer Decision
_______________
Valerie Vance Adeyeye, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as “the
individual@) to hold an access authorization under the regulations set forth at 10 C.F.R. Part
710, entitled ACriteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.@ As set forth below, it is my decision, based on the
evidence and testimony presented in this proceeding, that the individual=s access
authorization (“security clearance” or “clearance”) should be restored.1
I. Background
The individual was hired by a Department of Energy (DOE) contractor in 2009, and was
granted a security clearance at the request of his employer. In September 2010, the
individual was arrested for misdemeanor child abuse. In October 2010, the LSO conducted
a Personnel Security Interview (PSI) with the individual, but that interview did not resolve
the security concerns. The LSO suspended the individual’s clearance in February 2011,
and the LSO informed the individual that it had received derogatory information that had
created a doubt regarding his eligibility for access authorization. See Notification Letter
(June 2011). The Notification Letter stated that the derogatory information regarding the
individual falls within the purview of 10 C.F.R. § 710.8 (l) (Criterion L).2
1 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.
2 DOE invokes Criterion L when it is in possession of information that indicates that the individual has
engaged in unusual conduct or is subject to circumstances which tend to show that he is not honest,
- 2 -
The Notification Letter refers to the following derogatory information that raised concerns
about the individual’s honesty, reliability and trustworthiness: (1) during a PSI, he
discussed an incident where he hit his eight-year-old daughter while riding in a car, the
child’s mother filed a protection order against him, and he was arrested and charged with
child abuse; (2) the court issued a protection order against him arising from that incident;
and (3) the criminal charge had been transferred to the local grand jury after a January
2011 hearing and was not yet resolved.
In July 2011, the individual sent a letter to DOE Personnel Security and exercised his right
under Part 710 to request a hearing in this matter. 10 C.F.R. § 710.21(b). The Director of
OHA appointed me as Hearing Officer in this case. After conferring with the individual and
the appointed DOE counsel, 10 C.F.R. § 710.24, I set a hearing date. At the hearing, the
individual testified on his own behalf and called three additional witnesses. DOE counsel
called no witnesses. The transcript taken at the hearing shall be hereinafter cited as “Tr.”
Various documents that were submitted by the parties during this proceeding constitute
exhibits to the hearing transcript and shall be cited as “Ex.”
II. Analysis
The applicable regulations state that A[t]he decision as to access authorization is a
comprehensive, common-sense judgment, made after consideration of all relevant
information, favorable or unfavorable, as to whether the granting of 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). Although it is impossible to predict with
absolute certainty an individual=s future behavior, as the Hearing Officer I am directed to
make a predictive assessment. There is a strong presumption against the granting or
restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531
(1988) (Aclearly consistent with the national interest@ standard for the granting of security
clearances indicates Athat 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).
I have thoroughly considered the record of this proceeding, including the submissions of the
parties, the evidence presented and the testimony of the witnesses at the hearing
convened in this matter. 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): the nature, extent, and seriousness of the conduct; the circumstances
surrounding the conduct, to include knowledgeable participation; the frequency and recency
of the conduct; the age and maturity of the individual at the time of the conduct; the
voluntariness of the participation; the absence or presence of rehabilitation or reformation
and other pertinent behavioral changes; the motivation for the conduct; the potential for
pressure, coercion, exploitation, or duress; the likelihood of continuance or recurrence; and
other relevant and material factors. See also Revised Adjudicative Guidelines for
reliable, or trustworthy or which furnish reason to believe that he may be subject to pressure, coercion,
exploitation, or duress which may cause him to act contrary to the best interests of the national security.
10 C.F.R. § 710.8 (l).
- 3 -
Determining Eligibility for Access to Classified Information, The White House, (December
19, 2005) (Guidelines). After due deliberation, I find that the individual’s access
authorization should be restored because I conclude that such a restoration would not
endanger the common defense and security and would be clearly consistent with the
national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of this
determination are discussed below.
A. Findings of Fact
In 2002, the individual fathered a child with his high school girlfriend. PSI at 8. She
dropped out of school and after paternity was established, the individual paid child support.
The young parents had a very strained relationship. In 2004, the individual graduated from
high school and entered the military. Ex. 9; PSI at 68. While he was in the military, the
individual communicated with the child’s great-grandmother to arrange visitation. Tr. at 72.
When the great-grandmother died, the individual tried unsuccessfully to work on a
parenting plan with the mother. Id. at 73-75. When the individual left the military and
returned to his hometown, the couple entered into a visitation agreement whereby they
would exchange the child at the local police department. Id. at 76. However, despite the
agreement, they often argued over visitation. According to the individual, the mother began
turning the child against him and his family. Id. at 79-80. At various times, the individual
concluded that the daughter was disrespecting her elders. PSI at 8.
In 2009, the contractor hired the individual and he was granted a security clearance. PSI at
66. One day in August 2010, he picked his daughter up for a scheduled visitation period.
According to the individual, while driving to his father’s home the child became unruly and
disrespectful. PSI at 8-10; Tr. at 82-83. He tried to push her down in her seat but, when
she kept “rising up” against him, he “backhanded” her two or three times. PSI at 9-10. At
his father’s house, his father noticed that the child had bruises on her face and the
individual apologized to his daughter. Id. at 11. The next day he took the child to a
sporting event where her mother and other family members were in attendance. One of the
relatives noticed the bruise, and a male cousin and the mother’s current boyfriend got
enraged and attacked the individual. Id. at 11-13. The individual left and the mother took
her child to the hospital.
As a result of the child’s injuries, the mother filed for an Order of Protection against the
individual in August 2010. Ex. 8. In September 2010, he was charged with child abuse and
arrested. Id. The individual spent the night in jail and his father bailed him out. A hearing
was scheduled for November 2010, but the prosecution could not proceed because it was
unable to subpoena witnesses. Ex. 7. The prosecutor suggested that the individual’s
attorney talk to another prosecutor about pre-trial diversion. A new hearing was scheduled
for January 2011. Id.
In January 2011, there was a preliminary court hearing on the criminal charges. The case
was bound over to the grand jury so that the county could offer the individual a diversionary
resolution to his case (probation followed by dismissal). Ex. 7. At a hearing in August
2011, the individual pled guilty to misdemeanor child abuse and signed a pre-trial diversion
- 4 -
agreement that would dismiss the charges against him after one year if there were no
further criminal charges. Ex. 8.
B. DOE’s Security Concerns
Under Criterion L, the LSO alleges that the individual has engaged in unusual conduct or is
subject to circumstances which tend to show that he is not honest, reliable, or trustworthy,
or which furnishes reason to believe that he may be subject to pressure, coercion,
exploitation, or duress which may cause him to act contrary to the best interests of the
national security. 10 CFR 710.8 (l). The unusual conduct in this case includes criminal
behavior. Criminal activity creates doubt about a person’s judgment, reliability, and
trustworthiness. It calls into question a person’s ability or willingness to comply with laws,
rules and regulations. See Guidelines, Guideline J, ¶ 30. In the PSI, the individual
acknowledged that he had struck his daughter and was charged with misdemeanor child
abuse. Guideline J, ¶ 31(c). Thus, the LSO’s concern is valid.
C. Hearing Testimony
The individual testified at the hearing and also called two colleagues and a second-level
manager as character witnesses. Tr. at 12-65. All witnesses described the individual as an
honest, truthful and trustworthy person. The individual’s second level manager testified
that he is a good employee, and that the individual promptly reported the arrest to him. Id
at 14-21.
The individual’s colleagues are also involved with him in a local church where the individual
is a regular volunteer and attends Bible study weekly. They described the individual as a
responsible, committed volunteer who often works with the public in situations where
people may become angry, yet always presents a calm demeanor while maintaining order.
They consider him an excellent employee, courteous, friendly, and very personable. They
have never seen him get angry. Both of the colleagues also serve as lay counselors in
their church, and one is an ordained minister. The individual has participated in church
counseling since the fall of 2010, and both colleagues are very impressed with his humility,
commitment to learning more about his religion, and his growth in self-control. Tr. at 28-45,
46-65.
At the hearing, the individual described a tempestuous relationship with the mother of his
child, whom he has known since childhood, and the actions he has taken to resolve the
criminal charge against him. Tr. at 71-78, 100. He chose to resolve the criminal
proceeding by pre-trial diversion, but this was delayed because the district attorney with
authority to sign a pre-trial diversion agreement was not immediately available. Further, the
local grand jury met only three times per year. In addition, the prosecutor was unable to
locate the mother of the child from summer 2010 to summer 2011. Id. at 90. Nonetheless,
the district attorney agreed to diversion after accepting a guilty plea to misdemeanor child
abuse. The individual has had no contact with his daughter since the day after the incident,
and he has not committed any new crimes. Id. at 93.
- 5 -
The individual is currently active in a local ministry with outreach to the needy. He also
attended one anger management counseling session. Id. at 95. At the session he learned
that, if he found himself in a stressful situation with his child, he should stop and relax and
talk things through with her. He now understands that the child is caught in the middle and
feels that she must choose one of her parents. Id. at 97-98. Initially, the individual wanted
to set aside the “no contact” order and continue visitation with his daughter. However, he
was convinced that the mother would become even more hostile if he tried to seek
visitation. Id. at 98-103. As a result, he reluctantly decided that the best option for his
daughter was to relinquish his parental rights as her mother had requested. He testified that
he wanted to avoid conflict and minimize pressure on his child. According to the individual,
he wants his daughter to grow up and learn for herself what kind of man he is, and then
decide on her own when she turns 18 if she will have a relationship with him. Although this
was a hard decision, he thought it was the right thing to do. 3 Id. at 109.
D. Mitigation of Security Concerns
Although the individual admitted engaging in activity that resulted in a criminal charge, a
review of the record and the Adjudicative Guidelines supports a finding of mitigation of the
Criterion L security concern for the following reasons. First, I conclude that the behavior is
unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or
good judgment. Guideline J, ¶ 32 (a). The August 2010 criminal charge is the result of a
reprehensible action by the individual that cannot be excused or justified. However, I am
convinced by his testimony and that of his witnesses that the individual understands the
grave mistake he made and that he is unlikely to repeat the action. The individual has
attended counseling and anger management sessions that have provided him with not only
an understanding of the conflicts in his relationship with the mother of his child, but also
with the tools to avoid further problems. According to very credible witnesses (who also
serve as counselors and minister in his church) the individual has been a faithful volunteer
for their active local ministry and he regularly attends Bible study. The witnesses testified
about the lessons that the individual has learned about peacefully navigating his
complicated relationship with the mother of his child. They also described an individual
who can maintain a calm, professional demeanor in tense situations. That stability was
evident during the hearing in the individual’s calm, straightforward responses to probing
questions about his personal life. Further, the individual has agreed to comply with the
mother’s request that the court terminate his parental rights, thereby precluding the
possibility of visitation with his child. Thus, it is not likely that this situation would recur.
Second, the record contains evidence of successful rehabilitation, including the passage of
time without criminal activity, remorse, a good employment record, and constructive
community involvement. Guideline J, ¶ 32 (d). The criminal incident occurred over one
year prior to the date of the hearing, and there is no evidence in the record of any additional
criminal activity. The individual showed genuine remorse in his testimony, and the
witnesses corroborated his remorse over striking his daughter. Tr. at 108. He has been a
responsible and effective volunteer in a local ministry, and an exemplary employee, for over
3 The mother has not yet signed the document terminating his parental rights because no one has been able to locate
her. Tr. at 101, 109.
- 6 -
one year as of the date of the hearing. The criminal proceeding has been resolved by an
agreement that, upon its successful completion, will result in dismissal of the criminal
charges this year. Finally, the individual has agreed to terminate his parental rights and
avoid any further contact with his child. The individual testified credibly that although he
had misgivings about taking such a sad and final action, after much thought and anguish he
chose this option for his daughter’s sake, in order to spare her the problem of repeated
conflicts between her parents. He will not have any further contact with the child while she
is a minor. Therefore, I find that the security concerns under Criterion L have been fully
mitigated.
III. Conclusion
As explained in this Decision, I find that the LSO properly invoked 10 C.F.R. ' 710.8 (l).
After a review of the record, I find that the security concerns of Criterion L have been
resolved. Based on the record before me and considering the Adjudicative Guidelines and
Criterion L, I find that restoring the individual=s access authorization would not endanger the
common defense and security and would be consistent with the national interest.
Accordingly, I find that the individual’s access authorization should be restored. Any party
may seek review of this Decision by an Appeal Panel under the procedures set forth at
10 C.F.R. § 710.28.
Valerie Vance Adeyeye
Hearing Officer
Office of Hearings and Appeals
Date: February 28, 2012