Summary of Decisions - April 10, 2023 - April 14, 2023

Personnel Security Hearing (PSH)

Access Authorization Granted; Guideline F (Financial Considerations), Guideline E (Personal Conduct)

On April 10, 2023, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In 2011, the Individual completed an eQIP form, where he stated that he had not filed taxes between 2004 and 2011 and that he had been " under the mistaken impression" that if he had no unreported income and over -withheld, he did not need to file his taxes. This concern was eventually resolved in 2011 when the Individual said that he was in the process of filing the missing tax returns and that he intended to file his taxes in the future . At this time, an LSO official informed him as to the security concern raised by his failure to file taxes.

In the Individual's 2022 eQIP, he indicated that he had not filed state or federal taxes from 2014 to 2020. As a result of this admission, the LSO had the Individual complete a TESI and a Personnel Security Questionnaire.

At the hearing, the Individual testified. He stated that he had been concerned that if he filed his taxes incorrectly, he would be charged with perjury, but it was his understanding that if he let the IRS do his taxes for him, there was no such risk. At the time of the hearing, the Individual was unable to provide documentation that the IRS had sent him letters when he owed the federal government money or that he had filed back taxes.

The Administrative Judge concluded that the Individual had not mitigated the Guideline F or Guideline E concerns. At the time of the hearing, the Individual had not taken any concrete steps to address his repeated failure to file his taxes after being told that not doing so was a security concern.  Based on the evidence, the Administrative Judge concluded that the Individual had not mitigated Guideline F and Guideline E concerns. (OHA Case No. PSH-23-0027, Cronin)

Access Authorization Not Granted; Guideline E (Personal Conduct)

On April 11, 2023, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. In August 2021, according to an investigation by his employer, the Individual was placed on a Site Access Restriction (SAR) due to violating his employer's mask-wearing policy when he entered the facility unvaccinated, not wearing a mask, and reported to work while COVID-19 (hereinafter "COVID") positive. He was sent home and instructed not return without proof of vaccination or a negative COVID test. The Individual informed the employer's site physician that he was unable to get tested on August 9, 2021, but he told the site physician that he had received a positive result from an August 10, 2021, COVID test. However, on August 12, 2021, the Medical Director of the state Department of Health informed the site physician that the Individual had tested positive for COVID twice-on August 9, 2021, and the next day, August 10. Id. In his Letter of Interrogatory (LOI) response, the Individual admitted he had been untruthful to the site physician about his first positive COVID test because he was "shocked" by his first test results, and because he was nervous that he would be terminated from his job because he was sick and not been wearing a mask in accordance with his employer's policy. The employer's investigation also found that the Individual had deliberately violated employer procedures by deliberately obscuring the fact that he did not have a vaccine badge (card) by placing his hand over his badge when verifying his identity at the " search train," and intentionally turned his badge around backward after passing the guard station. In his LOI response, the Individual denied that he had intentionally obscured his badge and vaccination status, and asserted that he had developed an unintentional habit of turning his badge around after he showed it to the security guards at the search train.

At the hearing, the Individual's wife testified that the Individual has expressed remorse and apologized to her almost daily for putting their family in financial risk due to consequences from his actions that affected his job. The wife asserted that she believes the Individual will follow rules in the future because he has learned his lesson, has gotten counseling, and has recently increased his involvement in their church activities. The Individual also presented testimony from his coworker and his union president, both of whom testified that they found the Individual to be reliable, and that neither of them had known of any other occasions that the Individual failed to follow his employer's rules. The Individual testified that in approximately July 2021, he observed other employees who were unvaccinated and not wearing masks and he observed that his employer took no disciplinary action against his coworkers. He stated that for this reason and because he claimed the masks caused him headaches, he decided to stop wearing a mask. He also admitted that when he realized that his employer was going to find out about his August 9 positive COVID test, he should have self-reported his untruthful statements, but he had not done so. Regarding the allegations of obscuring his badge, the Individual again asserted his same explanation from his LOI response.

The AJ concluded that the Individual had not mitigated the security concerns raised by his pattern of dishonesty and rule violations brought under Guideline E. Therefore, the AJ determined that the Individual's access authorizations should not be granted. (OHA Case No. PSH-23-0041, Balzon)

Access Authorization denied; Guideline D and I

On April 13, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored.

The Notification Letter cited the Individual's admitted compulsion to engage in high -risk sexual behavior which led him to be vulnerable to coercion, exploitation, or duress and his admission that he found himself unable to stop this behavior, as well as a DOE Psychiatrist's conclusion that the Individual has a Pornography Addiction which the Psychiatrist concluded impairs the Individual's judgment, reliability, stability, and trustworthiness without evidence of rehabilitation or reformation.

After considering the evidence in the record, the AJ found that the Individual demonstrated impaired judgment when he chose to engage in adult-oriented chats with strangers on the internet, whom he believed to be foreign nationals, while maintaining a DOE security clearance.  The AJ further found that the Individual again demonstrated significantly impaired judgment by exchanging explicit photographs with these presumed foreign nationals. The AJ found that Individual further exhibited poor judgement, when he was extorted by one of these strangers and succumbed to the extortion attempts by making two payments to the extortionist, therefore demonstrating the potential national security implications of his behavior. In the opinion of the AJ, the Individual, however, exhibited sound judgement, courage, and integrity by eventually contacting law enforcement and the DOE to report the continuing extortion attempts.  Moreover, the AJ found that the Individual had begun to address the root causes of the behaviors that led to his impaired judgment and made him vulnerable to exploitation by attending a self-help therapy group for sex addicts and working with a therapist.  The AJ further found, however, that despite his efforts to control his behavior, the Individual, by his own admission, was continuing to engage in adult chats and was continuing to exchange explicit photographs with strangers on the internet, albeit at a reduced frequency - the same behaviors which led to his previous extortion and rendered him vulnerable to coercion, exploitation, or duress . Therefore, the AJ found that the Individual continued to demonstrate impaired judgment and to engage in behaviors which pose a risk to the national security and common defense.

While the AJ noted that the Pornography Addiction diagnosis is somewhat controversial, he further noted that the Individual, his therapist, and the Psychiatrist each agreed on the appropriateness of the that diagnosis to describe the Individual's mental health condition. Moreover, the AJ found that the Psychiatrist's opinions, that the Individual's present course of treatment for his Pornography Addiction was inadequate and had not been sufficiently effective, to be convincing.

The Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0052, Fine)

 Access Authorization denied; Guideline E and G

On April 14, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored.

The Individual had attended three alcohol treatment programs. The Individual also had a history of repeated treatment for alcohol use disorder (AUD) and relapse. A DOE Psychologist evaluated the Individual and diagnosed her with AUD and concluded that she was neither reformed or rehabilitated.

The AJ found that the Individual had also failed to report her treatment for AUD in 2018 to the LSO as required by DOE Order 472.2. He further found that her testimony that she was unaware of this requirement lacks credibility because he found it difficult to believe that an individual as accomplished and intelligent as the Individual would not have recalled a requirement that she had been officially informed of during several annual security refresher briefings. The AJ further noted that the Individual had repeatedly failed to report her enrollment in the IOP, which ended in her being discharged from that program after testing positive on two urine alcohol tests and failing to attend a scheduled treatment session. Taken together, the AJ found, that those facts suggest that the Individual was deliberately concealing the true extent of her alcohol issues from the LSO.

The AJ further found that Individual had consumed alcohol less than three months before the hearing, which he found to be an insufficient period of time to demonstrate that her AUD has been resolved and that her alcohol consumption is unlikely to recur.

The Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0017, Fine)