PSH-11-0009

* 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.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: October 27, 2011 )
) Case No.: PSH-11-0009
__________________________________________)
Issued: March 1, 2012
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Hearing Officer Decision
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Richard A. Cronin, Jr., Hearing Officer:
This Decision concerns the eligibility of XXXXXXX (“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
Individual’s access authorization should not be restored at this time.
I. BACKGROUND
The Individual is employed by a DOE contractor and has held a DOE access authorization for
approximately one year. Exhibit (Ex.) 10 at 1. The Individual was arrested for Driving While
Intoxicated (DWI) in January 2011. Ex. 10 at 1; Ex. 9 at 1. This disclosure prompted the Local
Security Office (LSO) to conduct two Personnel Security Interviews with the Individual in
March 2011 (03/2011 PSI) and July 2011 (07/2011 PSI). Exs. 19, 20. After the PSIs, the LSO
referred the Individual to a DOE consultant-psychologist (“the DOE Psychologist”) for an
evaluation. The DOE Psychologist examined the Individual in August 2011 and issued an
evaluative report (Report). Ex. 3.
In a September 2011 Notification Letter, the LSO informed the Individual that there existed
derogatory information that raised security concerns under 10 C.F.R. § 710.8 (h), (j) and (l)
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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(Criteria H, J and L, respectively) and that the Individual’s security clearance was being
suspended. See Ex. 1 (Notification Letter). 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. Ex. 2 at 8. 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 21 exhibits into the record (Exs. 1-21) and presented the testimony of
one witness, the DOE Psychologist. The Individual, represented by counsel, presented his own
testimony, as well as the testimony of eight other witnesses: a business partner (Business
Partner), his wife (Wife), a psychologist (Individual’s Psychologist), two co-workers (Co-
Workers 1 and 2), his supervisor (Supervisor), a friend (Friend), and a fellow member of
Alcoholics Anonymous (AA Member). See Transcript of Hearing, Case No. PSH-12-0009
hereinafter cited as “Tr.”). The Individual did not submit any exhibits.
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”).
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III. FINDINGS OF FACT AND ANALYSIS
A. Whether the LSO Properly Invoked Criteria H, J, and L
1. The Individual’s History of Alcohol Misuse and Treatment
The Individual was arrested in March 2000 for Making Alcohol Available to a Minor. Ex. 18 at
11. In January 2011, the Individual was arrested for Driving While Intoxicated (DWI). Ex. 17 at
2. During the 03/2011 PSI, the Individual admitted that prior to this arrest he had consumed six
12-ounce beers and three or four vodka tonics. Ex. 20 at 10. In July 2011, the Individual signed a
probation agreement resolving his January 2011 DWI arrest, where he agreed to abstain from
alcohol for the next 18 months. Ex. 15 at 3.
After reporting his arrest and consulting with the DOE facility’s Employee Assistance Program,
the Individual attended an Intensive Outpatient Program (IOP) at a treatment facility. Ex. 19 at
46-47, 49; Ex. 20 at 40-41. Prior to his attendance at the IOP during March 2011 and April 2011,
the Individual signed the IOP Rules Agreement Form (Rules Agreement) where he agreed that
he would not possess alcohol or be under the influence of alcohol while in the IOP facility or
involved in program activities. Ex. 12. The Individual also signed the IOP Attendance and
Graduation Guideline Form (Guideline Form) in which the Individual agreed to abstain from all
mood-altering chemicals while enrolled in the IOP. Ex. 13. One day after signing the Rules
Agreement and the Guideline Form, the Individual, during the 03/2011 PSI, stated his intention
to continue consuming alcohol. Ex. 20 at 44. During the 07/2011 PSI, the Individual admitted
that during the period, January 1997 to July 2011, a period which included his participation in
the IOP, he would consume five beers over three to four hours every two weeks. Ex. 19 at 84-85.
After his examination of the Individual in August 2011, the DOE Psychologist found that the
Individual suffered from Alcohol-Related Disorder, NOS.2 Ex. 10 at 6-7. The DOE Psychologist
calculated that the Individual’s typical consumption of five beers over three hours would result in
a blood alcohol concentration (BAC) of .08 g/210L, a BAC which would result in intoxication.
Ex. 10 at 3-4, 6. Consequently, because the Individual consumed this amount of alcohol twice a
month, the DOE Psychologist opined that the Individual used alcohol habitually to excess. Ex.
10 at 6. Additionally, the DOE Psychologist opined that the Individual’s illness could cause a
significant defect in judgment and reliability. Ex.10 at 6.
b. 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). It is well established that “certain emotional, mental, and personality
conditions can impair judgment, reliability, or trustworthiness.” Adjudicative Guidelines,
2 “NOS” is an acronym in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition – Text Revision
(DSM-IV-TR) for “Not Otherwise Specified.”
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Guideline I. Conduct involving such psychological conditions can raise questions about an
individual’s ability to protect classified information. Personnel Security Hearing, Case No. TSO-
0927 (November 30, 2010) (Alcohol Abuse found to raise security concerns under Criterion H).
Criterion J refers to information indicating that an individual has “[b]een, or is, a user of alcohol
habitually to excess, or has been diagnosed by a psychiatrist or a licensed clinical psychologist as
alcohol dependent or as suffering from alcohol abuse.” 10 C.F.R. § 710.8(h). Excessive alcohol
consumption raises a security concern because it can lead to questionable judgment and the
failure to control impulses, which in turn can raise questions about a person’s reliability and
trustworthiness. See Adjudicative Guidelines, Guideline G; Personnel Security Hearing, Case
No. TSO-0927 (November 30, 2010). In light of the DOE Psychologist’s determinations that the
Individual suffers from Alcohol-Related Disorder NOS, a condition that causes or may cause a
significant defect in the Individual’s judgment and reliability, and that the Individual has used
alcohol habitually to excess, I find that the LSO properly invoked Criteria H and J.
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). Conduct involving questionable
judgment, lack of candor, dishonesty or unwillingness to comply with rules or regulations can
raise questions about an individual’s reliability, trustworthy and ability to protect classified
information. Adjudicative Guidelines, Guideline E. Given the Individual’s statement in the
07/2011 PSI indicating that the Individual consumed alcohol during his participation in the IOP,
the LSO had sufficient grounds to invoke Criterion L.
B. Whether the Individual Has Mitigated the Security Concerns
To resolve the security concerns raised by the Criteria H, J and L derogatory information, the
Individual presented evidence to establish that he has completed an IOP and has been abstinent
from alcohol since June 30, 2011. He also presented testimony from his Psychologist and a
fellow AA Member to support his assertion that he is at very low risk to resume alcohol misuse.
At the hearing, the Individual also presented testimony to prove that, despite his answer in the
PSI to the contrary, he did not, in fact, consume alcohol during his participation in the IOP and
that he has an exemplary character. The relevant testimony and my analysis of the evidence is
summarized below.
1. Criteria H and J3
After the 2011 arrest, the Individual, upon reporting to work, was directed to meet with the
facility’s psychologist, who referred him to the Individual’s Psychologist. Tr. at 110-11. The
Individual’s Psychologist recommended that the Individual attend an IOP at a treatment facility
where she is employed. Tr. at 111. The IOP is a five-week, four-day a week program which
provides counseling and education regarding substance abuse. Tr. at 111. The Individual began
the IOP in March 2011 and completed the program in April 2011. Tr. at 112. Through his
participation in the IOP, the Individual learned about the significance of alcohol abuse and how it
3 I will consider the Criterion H and J concerns together because they both concern the Individual’s misuse of
alcohol.
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can change people’s lives. Tr. at 139. He now knows that on the night before his 2011 DWI
arrest he abused alcohol and made a bad decision to drive. Tr. at 139. The Individual currently
attends the IOP aftercare program and has monthly sessions with his Psychologist for individual
counseling. Tr. at 121, 138. The Individual also participates in an AA program. Tr. at 120.
Nonetheless, the Individual believes that he does not have an alcohol problem. Tr. at 139. The
Individual’s intention is to abstain from alcohol. Tr. at 126.
At the July 2011 hearing regarding the 2011 DWI, the Court sentenced the Individual to
probation with the one of the conditions being that the Individual abstain from alcohol for 18
months. Tr. at 142-42; Ex. 15 at 3. The Individual last consumed alcohol on June 30, 2011, the
day before his hearing regarding the 2011 DWI. Tr. at 139. The Business Partner, the Wife, Co-
Workers 1 and 2, the Friend, and the Supervisor testified as to the Individual’s abstinence from
July 2011 to the date of the hearing. Tr. at 21, 27, 47-48, 63, 76-77, 87.
The Individual’s Psychologist testified that the Individual “did well” at the IOP and the
associated aftercare program. Tr. at 165. The Individual has discussed with her his struggles with
the 12 steps of the AA program, especially the step that proclaims that the Individual must admit
that he has no control over alcohol. Tr. at 157. The Individual has difficulty with that step
because he has a history of being able to function effectively and still consume alcohol. Tr. at
152. The Individual’s Psychologist believes that the Individual, at the time of his examination by
the DOE Psychologist, suffered from Alcohol Abuse. Tr. at 159. The Individual’s Alcohol Abuse
may have resulted from his separation from his first wife. Tr. at 159-60.
The Individual’s Psychologist opined that, as of the date of the hearing, the Individual no longer
suffers from Alcohol Abuse. Tr. at 163. Her opinion was based upon the fact that the incident
which led to the diagnosis, the January 2011 DWI arrest, occurred over 12 months ago. Tr. at
163. The Individual’s Psychologist believes that the Individual is committed to maintaining
abstinence and is capable of accomplishing it. Tr. at 164. However, she does have a concern
regarding the closeness in time of the Individual’s marriage to his divorce and its potential effect
on his sobriety. Tr. at 164-65. This is especially so since the Individual’s 2011 DWI arrest
occurred approximately when the Individual’s first marriage ended.4 Tr. at 164-65. The
Individual’s Psychologist believes that the Individual needs support as he adapts to family life
and a new child. Tr. at 165. Overall, the Individual’s Psychologist believes that the Individual
has a low probability of returning to a problematic consumption of alcohol. Tr. at 165.
The AA Member has known the Individual since October 2011 and has observed the Individual’s
regular attendance at two different AA meeting locations. Tr. at 94. While not the Individual’s
AA sponsor, the Individual has spoken to him about the possibility of the AA Member becoming
his sponsor. Tr. at 95. In December 2011, the AA Member observed the Individual participate in
a ceremony where the Individual dedicated his life to his religion. Tr. at 95-96. The AA Member
also knows that the Individual regularly attends service at a local church. Tr. at 96.
The AA Member believes that the Individual “wants to change” and is off to a “good start.” Tr.
at 97. With regard to the 12 steps of the AA program, the AA Member testified that the
4 The Individual’s divorce was finalized in June 2011, and he married his current wife in November 2011. Tr. at 33,
125.
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Individual has not discussed his progress with the AA Member regarding these steps. Tr. at 100.
However, based upon his observation of the Individual, the AA Member believes that the
Individual is ready to go beyond the first three steps of the program. Tr. at 100. In going beyond
the first three steps, the AA Member recommended that the Individual find a person to work with
in addressing these steps. Tr. 100-01. The AA Member’s belief is that the Individual intends to
stop consuming alcohol indefinitely. Tr. at 104.
The DOE Psychologist believes that the Individual may now finally believe he has a problem
with alcohol.5 Tr. at 193. In the DOE Psychologist’s opinion, while the Individual is seeking a
sponsor and has had an intense religious emotional experience that will give the Individual a
moral structure for living, these measures are not sufficient for him to conclude that the
Individual is currently rehabilitated from his alcohol disorder. Tr. at 194. Given the Individual’s
initial lack of candor and the Individual’s initial lack of belief that he had an alcohol problem, the
DOE Psychologist believes that rehabilitation requires a longer involvement with AA along with
continued therapy with the Individual’s Psychologist.6 Tr. at 194-95. The DOE Psychologist
testified that the exact duration of this treatment would depend on the Individual’s therapists.7
After reviewing the evidence before me, I find that the Individual has not resolved the Criteria H
and J concerns arising from his 2011 DWI arrest, his misuse of alcohol and the DOE
Psychologist’s diagnosis of Alcohol Related Disorder, NOS. To the Individual’s credit, he has
successfully completed the IOP, has been regularly attending AA, and is seeking continuing
counseling with his Psychologist. Further, the Individual, as of the date of the hearing, has
abstained from alcohol for approximately seven months. However, while the Individual plans to
abstain from alcohol indefinitely, I also note that his abstinence may not be solely the choice of
the Individual but also mandated by his current probation status related to the 2011 DWI. I am
also concerned about the Individual’s attitude as to his alcohol problem. At the hearing and
during the 07/2011 PSI, the Individual denied that he had an alcohol problem. Further, I note the
Individual’s problem with regard to the AA step requiring one to admit that one is powerless
over alcohol. Although the DOE Psychologist speculated that the Individual was actually trying
to say that he does not now have a problem, I am not convinced as to the strength of Individual’s
belief that he has an alcohol problem that requires treatment. Finally, I find that the DOE
5 At the hearing, the Individual challenged the basis for the DOE Psychologist’s conclusion that, based upon the
Individual’s reported consumption and a web-based BAC calculator, the Individual was repeatedly intoxicated. Tr.
at 202-10. The DOE Psychologist testified that the equation used in the web-based BAC calculator was a standard
equation referenced by a standard reference to train State prosecutors. Tr. at 209-10. While the DOE Psychologist
testified that the equation did not take into account all factors which could affect a person’s BAC, this admission is
not sufficient to discredit the DOE Psychologist’s calculations in the absence of additional expert testimony.
6 Given the evidence before the DOE Psychologist regarding the Individual’s blood alcohol level when arrested, and
the Individual’s height and weight, the DOE Psychologist concluded that the Individual did not provide a credible
account of his alcohol consumption before the 2011 DWI arrest, two mixed drinks, to the IOP. Tr. at 192-93. The
DOE Psychologist also recalled that the Individual informed him that he had consumed alcohol during his
participation in the IOP. Tr. at 150.
7 The DOE Psychologist also opined that the Individual should discuss, in therapy, possible issues arising from his
recent marriage so as to reduce stress in his life. Tr. at 199.
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Psychologist’s opinion is more convincing that the Individual’s Psychologist’s testimony with
respect to the status of the Individual’s rehabilitation. Consequently, as of the date of the hearing,
I find that the Individual has not sufficiently resolved security concerns arising from the
Criteria H and J derogatory information. See Personnel Security Hearing, Case No. TSO-1068
(September 28, 2011) (individual found not to be sufficiently rehabilitated from Alcohol Abuse
despite favorable opinion testimony from individual’s treating psychologist).
2. Criterion L
With regard to the allegations in the Notification Letter that he was not truthful or he that failed
to honor his commitments, the Individual testified that he did not consume alcohol during his
participation in the IOP. Tr. At 114. When he stated in the 07/2011 PSI that he was consuming
five beers over three to four hours during the period, 1997 to July 2011, he had forgotten about
his participation in the IOP where he abstained for the entire duration of the program. Tr. at 114.
Further, to the extent he may have given the DOE Psychologist the impression that he consumed
alcohol during the IOP, the Individual testified that he made a mistake. Tr. at 149. The
Individual’s Wife, Co-Workers and Supervisor all testified as to their belief that the Individual
was honest and has always fulfilled his commitments. Tr. at 15, 47, 58, 87, 89.
The Individual’s Psychologist testified that, in her opinion, the Individual was not intentionally
being dishonest. Tr. at 162. She found, however, that the Individual was “lackadaisical” with
historical information. Tr. at 162. Specifically, the Individual’s Psychologist found that the
Individual, unless he is told a task is important, does not pay much attention to historical facts.
Tr. at 162. The DOE Psychologist found that the Individual tries to be honest and has high moral
values. Tr. at 191. However, the DOE Psychologist believes that when it involves his alcohol
consumption, the Individual believes that it is not important to be accurate about facts.8 Tr. at
191.
The Notification Letter states that the Individual violated commitments he made in the Rules
Agreement and the Guidelines Form. As an initial matter, the Rules Agreement only prohibits
the Individual from possessing alcohol while on the IOP facility or while involved in IOP
activities. Ex. 12 at 1. There has been no evidence presented to me that indicates that the
Individual possessed alcohol while at the IOP facilities or while participating at IOP activities.
Consequently, this Criterion L allegation has been resolved. The Guidelines Form states that the
Individual will abstain from alcohol while enrolled in the five-week IOP. While the Individual
stated in the PSI that he consumed alcohol during the period 1997 to July 2011 (which includes
the Individual’s participation in the IOP), I find that the Individual did not intend to mislead the
LSO. I find convincing the Individual’s explanation that he made the statement in error because
he forgot about his participation in the IOP. Further, the Individual’s erroneous answer did not
seek to minimize his alcohol consumption or cast him in a favorable light.
8While not cited in the Notification Letter, several incidents were disclosed at the hearing where the Individual may
have been less than candid regarding his alcohol consumption. See Tr. at 143 (Individual asserted to the DOE
Psychologist that no person informed him that he must abstain from alcohol despite signing probation agreement
forbidding his use of alcohol while on probation); Ex. 15; Tr. at 144 (Individual reported in an IOP follow up that he
had only consumed alcohol once in the past six months when in reality Individual had been using alcohol every two
to three weeks); Ex. 11. The Individual admitted that these two statements were inaccurate. Tr. at 143-144; see also
footnote 6.
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The Notification Letter also alleges that the Individual failed to honor the commitment he made
in the Guidelines Form when he admitted in the 07/2011 PSI that he consumed alcohol after the
IOP. Again, I cannot find that the Individual failed to abide by this agreement since the
Guidelines Form only requires that the Individual “abstain from all mood altering chemicals . . .
while you are enrolled in this Intensive Outpatient Program.” Ex. 13 at 1 (emphasis added).
Nonetheless, as detailed above, the record has a number of instances where the Individual’s
accounts regarding his alcohol consumption patterns are misleading. I also have the testimony of
the two expert witnesses in this case who opined that the Individual has difficulty in providing
accurate information regarding his alcohol usage and history. While the Individual’s unreliability
is restricted to one area of his life, his alcohol usage, this unreliability is a vulnerability until the
Individual’s alcohol problem is resolved. Consequently, as of the date of the hearing, I cannot
find that the Criterion L security concerns have been resolved. See Personnel Security Hearing,
Case No. TSO-0509 (October 29, 2007) (Criterion L concerns related to misrepresentations of
alcohol consumption found not to be resolved in part due to their connection to the individual’s
unresolved alcohol problem).
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, J and L of
the Part 710 regulations. I also find that the Individual has not presented sufficient information to
fully resolve those concerns. Therefore, I cannot 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 not restore the Individual’s suspended access authorization at this time.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: March 1, 2012