PSH-11-0010

* 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-11-0010
__________________________________________)
Issued: March 5, 2012
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Hearing Officer Decision
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Richard A. Cronin, Jr., Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (“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 DOE
should not restore the Individual’s access authorization at this time.
I. BACKGROUND
The Individual is employed by a DOE contractor and has held a DOE access authorization for
several years. DOE Exhibit (Ex.) 13 at 2. In June 2011, the Individual was cited for Disorderly
and Lewd/Immoral Indecent Conduct (Disorderly Conduct). Ex. 9 at 2; Ex. 8 at 1. This
disclosure prompted the Local Security Office to conduct a Personnel Security Interview (PSI)
with the Individual in July 2011 (07/2011 PSI). Ex. 14. After the PSI, the LSO referred the
Individual to a DOE consultant-psychologist (“the DOE Psychologist”) for an evaluation. The
DOE Psychologist evaluated the Individual in August 2011 and issued an evaluative report
concerning the Individual that included an analysis of the Individual’s use of alcohol. Ex. 8.
In a September 2011 notification letter (Notification Letter), the LSO informed the Individual
that derogatory information existed that raised security concerns under 10 C.F.R. § 710.8 (h), (j)
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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and (l) (Criteria H, J and L, respectively) and that his security clearance was suspended.
See Ex. 1. 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 16 exhibits into the record (Exs. 1-16) 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 six witnesses: two daughters (Daughters 1 and 2), his sister
(Sister), a co-worker (Co-Worker), his supervisor (Supervisor), and a friend (Friend). See
Transcript of Hearing, Case No. PSH-11-0010 (hereinafter cited as “Tr.”) The Individual
submitted one exhibit (Ex. A).
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 Arrests
In November 1984, the Individual was cited for Urinating in Public. Ex. 11; Ex. 14 at 47. The
Individual was arrested in March 2001 for Driving While Intoxicated (DWI). Ex. 11; Ex. 13 at 1;
Ex. 14 at 45-46; Ex. 15 at 5-6. At the time of the 2001 DWI arrest, the Individual’s breath
alcohol content (BAC) was measured to be 0.125 and 0.129, both levels exceeding the legal limit
for alcohol in the State where he was arrested. Ex. 15 at 18.
In May 2011, one of the Individual’s neighbors called the local police to report that the
Individual was committing a lewd act in his garage. Ex. 9; Ex. 14 at 11-12, 24-25. The Individual
was later charged with Disorderly Conduct. Exs. 8, 9; Ex. 14 at 24-25.
During the July 2011 PSI conducted after the May 2011 arrest, the Individual admitted that,
prior to the incident resulting in the 2011 arrest, he had consumed two or three beers. Ex. 14 at
39-41; Ex. 8; Ex. 9. The Individual also revealed during the PSI that for the past ten years, he
had consumed four to five beers, five or six days a week. Ex. 14 at 50-51, 67-68.
In an August 2011 report (Report) regarding the Individual, the DOE Psychologist noted that the
Individual informed him that he typically consumes four to five beers per evening between 6:00
p.m. and 8:30 p.m.2 Ex. 7 at 4. The DOE Psychologist found that this level of alcohol
consumption would cause intoxication of the Individual on a nightly basis and may have
produced a tolerance to alcohol which prevents the Individual from feeling that he is intoxicated.
Ex. 7 at 7. Consequently, the DOE Psychologist determined that the Individual drinks alcohol
habitually to excess. Ex. 7 at 7. The DOE Psychologist also found that the Individual suffers
from an illness, Alcohol-Related Disorder, Not Otherwise Specified (Alcohol-Related Disorder),
pursuant to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition Text
Revision.3 Finally, the DOE Psychologist found that the Individual’s Alcohol-Related Disorder
could cause significant defects in his judgment and reliability.4 Ex. 7 at 8.
2 The DOE Psychologist also noted that the Individual, in the 07/2011 PSI, stated that his consumption of alcohol
would help him sleep. Ex. 7 at 4; Ex. 14 at 51. At the hearing, the Individual denied using alcohol to help him sleep.
Tr. at 87.
3 In his Report, the DOE Psychologist opined that, for the Individual to demonstrate sufficient evidence of
rehabilitation, the Individual should abstain from alcohol for 12 months and participate in Alcoholics Anonymous
(AA) or an intensive outpatient program at a treatment facility. Ex. 7 at 8.
4 The DOE Psychologist found that the Individual did not exhibit the type of personality features or characteristics
of men who commit the type of lewd act alleged in the Disorderly Conduct charge. Ex. 7 at 5.
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2. 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 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). 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(j). 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 determination that the Individual
suffers from Alcohol-Related Disorder, a condition that may cause a significant defect in the
Individual’s judgment and reliability, and that the Individual uses alcohol habitually to excess,
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 criminal activity, by
its very nature, calls into question a person’s ability or willingness to comply with laws rules and
regulations. Adjudicatory Guidelines, Guideline J. Given the information indicating that the
Individual has a history of arrests, including a recent arrest for Disorderly Conduct, the LSO had
sufficient grounds to invoke Criterion L.
B. Whether the Individual Has Mitigated the Security Concerns
At the hearing, the Individual challenged the DOE Psychologist’s conclusion that the Individual
has an alcohol problem. The Individual presented evidence showing that his current consumption
of alcohol has not created any problems with his life. Additionally, the Individual disputed the
DOE Psychologist’s determination that the Individual’s level of alcohol consumption produces
intoxication. During the hearing, the Individual also challenged the Criterion L allegations with
his submission of court records that indicated that he was found “Not Guilty” of the Disorderly
Conduct charge by a local court. Additionally, the Individual presented evidence as to his
excellent workplace performance and his outstanding character. The relevant testimony is
summarized below.
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1. Alcohol Misuse
The Individual does not dispute the level of his daily alcohol consumption. Tr. at 82-83, 93. The
Individual described his typical day in which he arrives at home approximately at 5:00 p.m. and
then runs five and one-half miles.5 Tr. at 80-81. When the Individual finishes his run, around
6:00 p.m., he begins preparing his dinner and consuming beer. Tr. at 81. After dinner, the
Individual watches television until 8:30p.m. and then goes to bed. Tr. at 82. On a typical
weekday, during 6:00 p.m. to 8:30 p.m., the Individual consumes four or five beers.6 Tr. at 83.
The Individual does not believe that he becomes intoxicated on the occasions that he consumes
alcohol. Tr. at 88. Each of the Individual’s witnesses testified to the Individual’s moderate
consumption of alcohol and to never having observed the Individual intoxicated. Tr. at 11, 25,
39, 48, 57, 63-66.
The Individual firmly insists that he does not have any type of alcohol problem. Tr. at 91. As
support for this belief, the Individual asserts that his alcohol consumption has not produced any
problems with his work performance, his finances, or his ability to take care of his personal and
family responsibilities. Tr. at 92, 95 113. Because the Individual does not believe that he has an
alcohol problem, he has not undertaken any of the treatment recommendations made by the DOE
Psychologist. Tr. at 93.
The DOE Psychologist testified that, based upon the Individual’s admitted nightly consumption
of alcohol, he concluded that the Individual frequently possessed a breath alcohol level of 0.08,
the level of legal intoxication. Tr. at 105. The DOE Psychologist believes that the Individual has
developed functional and physical tolerance to the effects of alcohol based upon the Individual’s
ten-year history of significant consumption of alcohol. Tr. at 107. Because of this tolerance, the
Individual can function “relatively normally” with regard to other people. Tr. at 107. At this
point of time, the DOE Psychologist believes that the Individual’s alcohol consumption is a “way
of life.” Tr. at 107. The DOE Psychologist opined that, given the Individual’s stubbornness, the
Individual is not likely to change his alcohol consumption habits. Tr. at 107-08. Further, the
Individual would likely not benefit from an alcohol educational program or AA.7 Tr. at 108.
Given the evidence before me, I cannot conclude that the Individual has resolved the Criteria H
and J concerns raised by the Individual’s admitted alcohol consumption, the DOE Psychologist’s
diagnosis of Alcohol-Related Disorder and the DOE Psychologist’s determination that the
Individual consumes alcohol habitually to excess. In the absence of other convincing expert
testimony, I find that DOE Psychologist’s testimony persuasive on the issue of whether the
Individual’s current pattern of alcohol consumption results in bouts of intoxication. The fact that
5 The Individual maintains an active exercise program on the recommendation of his physicians in order to preserve
his lung function, which was damaged by Chronic Beryllium Disease (CBD). Tr. at 77-80.
6 The Individual testified that during Saturdays and Sundays, he might consume five or six beers over the course of
an entire day. Tr. at 73.
7 The DOE Psychologist speculated that the Individual might be able to mitigate the security concerns associated
with his alcohol consumption if the Individual would reduce his consumption to three beers a night and seek
treatment from a physician regarding any sleeping problems the Individual might be suffering from. Tr. at 108-09.
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the Individual’s intoxication has not caused major life difficulties and is mostly restricted to
occasions when the Individual is at home does not mitigate the concerns raised by the
Individual’s repeated bouts of intoxication. Any excessive use of alcohol raises a security
concern due to the heightened risk that an individual’s judgment and reliability may be impaired
to the point that he or she may fail to safeguard classified matter or special nuclear material.
Personnel Security Hearing, Case No. TSO-1004, slip op. at 6 (June 23, 2011). Because I find
that the Individual is subject to bouts of intoxication and that the Individual has not sought any
treatment for his alcohol problem, I cannot find that the Criteria H and J security concerns have
been resolved.
2. Arrest History
The Individual has submitted a copy of a certified court record indicating that he has been found
“Not Guilty” with respect to the July 2011 Disorderly Conduct charge. Ex. A. The Individual
testified that he did not perform any lewd act during the events which led to the citation for
Disorderly Conduct. Tr. at 74. He also testified to his long history of disagreements with the
neighbor who filed the charges. Tr. at 74. In reviewing the Criterion L derogatory information,
the Individual does not believe that he has demonstrated any pattern of criminal conduct,
especially since the other two charges cited in the Notification Letter, a 2001 DWI arrest and a
1984 Urinating in Public arrest, occurred over a period of 27 years. Tr. at 76. The Individual’s
other witnesses testified to the Individual’s excellent judgment, reliability, trustworthiness and
work record. Tr. at 16, 18-19, 35-36, 45, 48-50, 56, 59, 66.
As for the Individual’s Disorderly Conduct charge, I note that his “Not Guilty” verdict is not
totally dispositive of this matter. In a criminal case, the prosecution must present sufficient
evidence to prove guilt “beyond a reasonable doubt.” In a security clearance proceeding, once
evidence exists raising a security concern, the Individual has the obligation to resolve the
concern. See Personnel Security Hearing, Case No. TSO-1048, slip op. at 2 (November 4, 2011)
(Part 710 “places the [evidentiary] burden on the individual because it is designed to protect
national security interests.”). In this case, I find that the Individual has submitted sufficient
evidence to resolve the concern raised by the Disorderly Conduct charge: the “Not Guilty”
verdict, evidence of conflict between the Individual and his neighbor, evidence provided by the
Individual’s witnesses, and the DOE Psychologist’s opinion that the Individual did not fit the
personality features of someone who would commit the lewd act described in the Disorderly
Conduct charge. Accordingly, I find that the Individual has resolved the security concerns raised
by the July 2011 Disorderly Conduct arrest.
With regard to the 1984 Urinating in Public arrest, I find that the passage of 28 years has
resolved any security concerns raised by this arrest. See Personnel Security Hearing, Case No.
TSO-0705 (May 28, 2009) (18-year old arrest for assault mitigated by the passage of time).
However, with regard to the 2001 DWI arrest, I cannot find that the Individual has resolved the
Criterion L security concern. The arrest occurred after the Individual’s current level of
problematic alcohol consumption began. Ex. 14 at 68-69; Tr. at 84 (Individual’s current pattern
of alcohol consumption began in late 1990s). Additionally, the Individual has not resolved the
underlying alcohol problem that was likely responsible for the arrest. See Personnel Security
Hearing, Case No. TSO-1079 (November 2, 2011) (an individual’s unresolved Alcohol
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Dependence prevents mitigation of Criterion L concerns arising from a history of alcohol-related
arrests). As discussed above with regard to Criteria H and J, the Individual’s unresolved alcohol
problem may result in the impairment of the Individual’s judgment. See supra. Consequently, I
cannot find that the Individual has totally resolved the Criterion L concerns raised in this case.
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was sufficient evidence to
raise 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 resolve the concerns raised by the Criteria H, J, and L derogatory information.
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, 5, 2012