Personnel Security (10 CFR Part 710)

On May 19, 2016, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should be restored.  The individual, who works in a secured area in a vault-type room (VTR), received notice in April 2015 that she had been randomly selected for her first-ever security related polygraph. In advance of the polygraph, she disclosed to her security office that she had (1) during 2011-2012, on a daily basis, brought a prohibited personal electronic device into the VTR (with the wireless networking capacity turned off), (2) in 2014, walked into the VTR on two occasions with her personal cell phone in “airplane” mode and had failed to not report those security violations, and (3) in 2015, not fully secured the VTR on two occasions when leaving it vacant and had failed to report those security violations.  The LSO suspended the individual’s access authorization citing Criteria G and L. The Administrative Judge noted the unintentional and infrequent nature of the VTR violations in 2014 and 2015.  With respect to the more disturbing deliberate violations (2011-2012 bringing personal electronic device into the VTR and the 2014 and 2015 failures to report the unintentional violations), the Administrative Judge noted the testimony of (1) the individual’s senior manager with respect to the individual’s candidness in voluntary talks she had given at security forums and the positive influence she had had in the workplace culture and (2) of the individual with respect to her seeking additional security training and her now clear understanding of the importance of reporting. On this basis, the Administrative Judge found that the individual had resolved the security concerns arising under Criteria G and L.  OHA Case No. PSH-16-0002 (Wade M. Boswell)

On May 19, 2016, an Administrative Judge issued a decision in which she determined that an individual's access authorization should not be restored.  In August 2015, as part of a background investigation, the Local Security Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about his alcohol-related arrests and alcohol use.  In addition to the PSI, the LSO requested the individual’s medical records and recommended a psychological evaluation of the individual by a DOE consultant psychologist (DOE psychologist).  According to the DOE psychologist, the individual suffers from Alcohol Abuse.  The DOE psychologist further concluded that the individual’s Alcohol Abuse is a mental illness that causes or may cause a significant defect in his judgment and reliability.  During the hearing, the individual maintained that he has abstained from alcohol since July 2015, prior to his 2015 Driving Under the Influence (DUI) arrest.  He further maintained that upon his release from jail, he voluntarily sought the advice of an alcohol counselor in the Employee Assistance Program (EAP) and attends individual therapy with another counselor in the community.  He offered the testimony of his EAP counselor who stated that he is satisfied that the individual has not been drinking since July 2015.  After listening to the hearing testimony, the DOE psychologist testified that the individual is in denial regarding his alcohol consumption and noted that the individual has not followed the recommendations he suggested in his report.  He further noted that, although the individual is consulting with two alcohol counselors, there is no objective evidence that the individual has not been drinking, stating that the only objective evidence in the record was the individual’s enzyme test which suggests that he has likely been drinking.  The Administrative Judge was persuaded by the testimony of the DOE psychologist that the individual has not yet achieved adequate evidence of rehabilitation.   She also concluded that the individual’s 2015 DUI was recent and there has not been a sufficient passage of time since the criminal behavior occurred.  Accordingly, she determined that the Criterion L security concern with the individual’s reliability remains unresolved.  OHA Case No. PSH-16-0008 (Kimberly Jenkins-Chapman)

Contractor Employee Protection Program (10 CFR Part 708)

On May 16, 2016, OHA denied an Appeal of a dismissal of a Complaint filed by Richard Lusby against Savannah River Nuclear Solutions (SRNS) under the Department of Energy’s (DOE) Contractor Employee Protection Program, 10 CFR Part 708.  In his Complaint, Mr. Lusby alleged that SRNS had failed to hire him for several positions for which he had applied.  He further alleged that the contractor’s actions constituted retaliation for his prior Notice of Employee Concern, filed with SNRS on July 24, 2013.  In that prior concern, Mr. Lusby had alleged that he was improperly forced to vacate his position, and moved to a lesser position.  He alleged that his supervisor had lied to management, stating that Lusby had “volunteered” to leave his position.  In his present complaint, he cites this alleged lie as the protected disclosure giving rise to the current alleged retaliation.  The DOE Savannah River Operations (SRO) Office of Employee Concerns dismissed the complaint on the basis that the facts did not present issues for which relief can be granted under 10 CFR Part 708.  On appeal, OHA agreed with the SRO that Mr. Lusby had failed to state a claim upon which relief could be granted.  Specifically, OHA found that Mr. Lusby’s alleged disclosures did not constitute protected disclosures under Part 708. Consequently, OHA denied Mr. Lusby’s Appeal. OHA Case No. WBU-16-0004