Personnel Security (10 CFR Part 710)

On September 10, 2014, an OHA Administrative Judge issued a Decision in which he concluded that an individual’s security clearance should not be restored.  During a periodic re-investigation of the individual, the LSO received information that the individual had several unresolved collection accounts and was delinquent in federal and state tax filings. The LSO suspended the individual’s access authorization due to security concerns arising under Criterion L. The individual resolved two of his collection accounts prior to the hearing and resolved the remaining collections item immediately after the hearing. Prior to the hearing, the individual filed his 2012 tax returns (approximately one year late) and 2013 tax returns (on time); he established payments plans with both federal and state tax authorities for his outstanding taxes for 2012 and 2013. He commenced payment on his tax plans approximately two months prior to the hearing and was current on his payments thereunder. To reduce his tax liability moving forward, approximately three weeks prior to the hearing he increased his tax withholdings. Although the LSO had cited only the individual’s 2012 tax delinquencies, the Administrative Judge noted that the individual had begun experiencing tax problems in 1998 or 1999 and had delinquently filed all of his tax returns for 2001, 2002, and 2005 through 2012 – frequently three years after the filing deadline. He withdrew funds from his retirement accounts in order to pay his tax liabilities on all of his delinquent returns since at least 2005, demonstrating that he had been unable to live within his financial means. The Administrative Judge noted that, although the individual had made laudable progress in resolving his financial irregularities, the individual had not demonstrated a new, sustained pattern of financial responsibility as would be required to resolve security concerns arising from the individual’s demonstrated pattern of financial irresponsibility. Therefore, the individual had not sufficiently mitigated the security concerns arising under Criterion L.  OHA Case No. PSH-14-0057 (Wade M. Boswell)

On September 12, 2014, an OHA Administrative Judge issued a Decision finding that the individual’s security clearance should be restored after determining that the documentary and testimonial evidence showed that the individual had demonstrated adequate evidence of rehabilitation from his alcohol abuse and his habitual use of alcohol to excess. Specifically, the Administrative Judge found that the individual had acknowledged his alcohol problem, had provided evidence of his actions taken to address his alcohol-related problems, including successful completion of a 12-step rehabilitation program, and had demonstrated a clear pattern of responsible use in accordance with his treatment recommendations. In addition, the Administrative Judge pointed to the DOE psychologist’s opinion that the individual’s prognosis was good, and that he had a low probability of recurrence. OHA Case No. PSH-14-0053 (Kimberly Jenkins-Chapman)

On September 11, 2014, an OHA Administrative Judge (AJ) issued a Decision in which she concluded that the DOE should not restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual to administrative review citing the individual’s mental condition as a security concern, specifically his diagnosis of Mild Neurocognitive Disorder, a mental condition which causes or may cause significant defects in judgment or reliability.  In addition, the Operations Office cited the individual’s unpaid collection accounts and omissions on various security questionnaires as raising concerns regarding the individual’s honesty, reliability and trustworthiness, and his willingness and ability to follow laws, rules, and regulations.  After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the individual had resolved the security concerns raised by his pattern of financial irresponsibility.  Specifically, the AJ noted that several members of his household had serious medical conditions which often resulted in unpredictable large medical expenses, and the individual tried to maintain money in savings in order to pay those expenses. Moreover, the individual acted responsibly in maintaining his routine financial obligations and had not accrued any new debt.  In this regard, the AJ found that the individual’s decision not to pay off old collection and charged-off accounts was reasonable under the circumstances.  However, the AJ further concluded that, despite the individual’s disagreement with his diagnosis, the record established that individual did have a mental condition – Mild Neurocognitive Disorder – which may cause significant defects in judgment and reliability, and which is not amenable to treatment.  Therefore, the concerns related to his mental condition were not mitigated.  Finally, the AJ found that the individual did not deliberately omit information on his security questionnaires.  Rather, the omissions were likely a product of his mental condition.  As a result, the attendant concerns regarding the individual’s reliability and trustworthiness remained.  Consequently, the AJ found that the DOE should not restore the individual’s suspended security clearance.  OHA Case No. PSH-14-0056 (Diane DeMoura)

On September 11, 2014, an OHA Administrative Judge (AJ) issued a Decision in which she concluded that the DOE should not grant an individual access authorization.  A DOE Operations Office referred the individual to administrative review citing as security concerns the individual’s falsifications, omissions, or misrepresentations on a security questionnaire, information pertaining to the individual’s alcohol consumption, and the individual’s history of five alcohol-related arrests and one drug-related criminal charge.  After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ questioned the credibility of individual’s own testimony, and noted that, since the individual elected not to present any testimonial or documentary evidence, his assertions remained wholly uncorroborated in the record.  Consequently, the AJ concluded that the individual had not presented sufficient information to adequately mitigate the cited security concerns. Therefore, the AJ found that the DOE should not grant the individual DOE access authorization.  OHA Case No. PSH-14-0064 (Diane DeMoura)

On September 11, 2014, an OHA Administrative Judge issued a Decision in which she determined that an Individual’s access authorization should be restored.  In reaching this determination, the Administrative Judge found that the Individual had resolved the security concerns arising from his diagnosis with Major Depressive Disorder (MDD).  At the hearing, the DOE psychologist testified that the Individual suffered from MDD, Recurrent, Severe, which could significantly and clinically impair his judgment and compromise his reliability.  The individual presented the testimony of Psychiatrist #2, who also diagnosed him with MDD, Recurrent, but in partial remission.  Psychiatrist #2 also testified that the MDD has caused a major health problem for the individual and has had a significant impact on his life, but that it has not impacted his cognitive function or his overall daily activities or lifestyle.  He continued that the individual is high-functioning with high intelligence, and methodical, systematic person with solid, stable, and ethical principles.  Based on Psychiatrist #2’s opinion that the Individual’s MDD has not impacted his core functioning, the Administrative Judge found that his MDD does not currently cause a significant defect in the individual’s judgment or reliability.  The Administrative Judge further found that the individual’s MDD diagnosis would not impair his judgment, reliability, and trustworthiness in the future, since he has demonstrated ongoing and consistent compliance with the treatment plan.  Finally, he has received a favorable prognosis by Psychiatrist #2.  Based on the foregoing, the Administrative Judge concluded that the individual’s access authorization should be restored.  OHA Case No. PSH-14-0037 (Janet R. H. Fishman)

On September 10, 2014, an OHA Administrative Judge (AJ) issued a Decision in which he concluded that the DOE should not grant access authorization to an individual. After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the individual had adequately mitigated the security concerns raised under Criterion L regarding his financial difficulties by showing that they were due to factors that were beyond his control, but had not adequately addressed the security concerns under that criterion by his history of illegal activity. This history included multiple alcohol-related arrests, probation violations, over 100 instances of illegal drug usage, and failure to file state and local tax returns. Therefore, the AJ was unable to conclude that granting the individual a security clearance would not endanger the common defense and be clearly consistent with the national interest. Accordingly, the AJ found that the DOE should not grant the individual access authorization.  OHA Case No. PSH-14-0061 (Robert Palmer)

On September 12, 2014, an Administrative Judge issued a Decision in which he determined that an individual’s should not be granted an access authorization. In reaching this determination, the Administrative Judge found that the individual had not resolved security concerns under Criteria F, J, H, and L regarding his history of Driving While Intoxicated (DWI) arrests, his diagnosis of Alcohol Related Disorder, Not Otherwise Specified, by a DOE-contractor psychologist (DOE psychologist), and falsifications in a September 2013 Questionnaire for National Security Positions (QNSP) regarding the extent of DWI and felony arrests. The individual testified that he did not believe that he needed to report the arrests because he was issued a new social security number after those arrests and he believed that the arrests would not be discovered using his current social security number. The individual also testified that he did not believe that he had an alcohol problem because he currently consumes a limited amount of alcohol. However, the DOE psychologist maintained his opinion during his testimony that the individual has an alcohol disorder. Accordingly, the Administrative Judge found that the individual had not presented sufficient evidence to resolve the concerns raised by the Criteria F, J, H, and L derogatory information, and that the individual should therefore not be granted a security clearance.  OHA Case No. PSH-14-0066 (Richard Cronin)

Contractor Employee Protection Program (10 CFR Part 708)

On September 11, 2014, the OHA issued a Decision denying an Appeal filed by Tony Quillen of the dismissal by Portsmouth/Paducah Project Office’s (PPPO) of his whistleblower complaint for lack of jurisdiction or other good cause.  OHA found that PPPO had correctly and reasonably determined that a settlement agreement between a union and his employer had provided Mr. Quillen with a remedy that it considered to be equivalent to what he could receive under Part 708.  OHA therefore upheld the dismissal. OHA Case No.  WBU-14-0009