PSH-11-0034

* 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: December 14, 2011 )
) Case No.: PSH-11-0034
_________________________________________ )
Issued: March 16, 2012
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Hearing Officer Decision
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Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (“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 restore the Individual’s access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor and has held a DOE access authorization for
several years. DOE Ex. 3. In August 2011, the Individual timely reported to the Local Security
Office (LSO) her arrest for Driving Under the Influence (DUI) of alcohol. DOE Ex. 10. The
incident prompted a September 2011 Personnel Security Interview (PSI). DOE Ex. 11. After the
PSI, the LSO referred the Individual to a DOE consultant-psychiatrist (“the DOE psychiatrist”)
for an evaluation. The DOE psychiatrist evaluated the Individual in October 2011 and issued a
report. DOE Ex. 8. After reviewing the Individual’s personnel security file, the LSO informed
the Individual in a November 2011 Notification Letter that there existed derogatory information
that raised security concerns under 10 C.F.R. § 710.8 (h) and (j) (Criteria H and J, respectively).
See Notification Letter, November 14, 2011. The Notification Letter also informed the
Individual that she was entitled to a hearing before a Hearing Officer in order to resolve the
security concerns. Id.
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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The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded her request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the DOE counsel introduced 12 exhibits into the record (DOE Exs. 1-12) and presented the
testimony of one witness, the DOE psychiatrist. The Individual, represented by counsel,
presented her own testimony, as well as the testimony of three witnesses: her Alcoholics
Anonymous (AA) sponsor, her best friend, and her supervisor. See Transcript of Hearing, Case
No. PSH-11-0034 (hereinafter cited as “Tr.”).
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) (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”).
III. FINDINGS OF FACT AND ANALYSIS
A. Whether the LSO Properly Invoked Criteria H and J
1. The Individual’s Alcohol Use and Related Facts
The Individual began drinking alcohol while in high school in the early 1990s. DOE Ex. 11 at
36-37. She consumed alcohol primarily in social situations, drinking a few drinks on weekends
with friends a few times per month. Id. at 45, 47. Although the volume of the Individual’s
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alcohol consumption – typically, five to six beers on each occasion – remained constant, the
frequency of her drinking fluctuated slightly over the years. Id. at 56-63. During the 1990s, the
Individual reportedly consumed alcohol two to four times per month. Id. at 51-56. From 2000 to
2008, the Individual drank one to two times per month. Id. at 59-63. From 2008 until August
2011, the Individual’s alcohol consumption decreased to once every two to three months. Id. at
65-66.
In August 2011, the Individual attended a professional football game with her father. Id. at 10.
The Individual consumed approximately five 16-ounce beers during the outing. Id. at 12-13.
The Individual drove her father home after the game and, while on her way to her home, the
Individual was pulled over by a police officer for failing to fully stop at a stop sign. Id. at 13, 15-
16. During that stop, the police officer administered field sobriety tests, which the Individual did
not pass. Id. at 17. The Individual was transported to the police station and given a breathalyzer
test, on which she registered a 0.2 breath alcohol content, more than twice the legal limit of 0.08.
Id. at 18-19. The Individual was ultimately placed under arrest for DUI. Id. at 19; see also DOE
Ex. 10.
As noted above, the Individual was evaluated by the DOE psychiatrist. Following the
evaluation, the DOE psychiatrist diagnosed the Individual with Alcohol Abuse. DOE Ex. 8 at
10. Noting the Individual’s general ambivalence and lack of insight regarding her alcohol
problem, the DOE psychiatrist further opined that the Individual did not demonstrate adequate
evidence of rehabilitation and reformation. Id. at 10-11. He concluded that in order to
demonstrate adequate evidence of rehabilitation and reformation, the Individual should either
submit to one year of random blood alcohol screenings, attend AA meetings for one year, or
participate in an alcohol abuse treatment program for six months, and establish a minimum of
two years of abstinence from alcohol (alternatively, if the Individual did not submit to random
blood alcohol screenings, attend AA meetings or complete a treatment program, she must
demonstrate three years of abstinence). Id.
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). Criterion J relates to conduct indicating that the Individual has “been, 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). It is well-established that excessive use of alcohol raises security concerns because
“excessive alcohol consumption often leads to the exercise of questionable judgment or the
failure to control impulses, and can raise questions about an individual’s reliability and
trustworthiness.” Adjudicative Guidelines, Guideline G, ¶ 21. See also Personnel Security
Hearing, Case No. TSO-0678 (2008).2 In light of the DOE psychiatrist’s determination that the
Individual met the criteria for Alcohol Abuse, a condition which causes or may cause a
2 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision
in the search engine located at http://www.oha.doe.gov/search.htm.
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significant defect in her judgment and reliability, as well as the Individual’s August 2011 DUI
arrest, the LSO properly invoked Criteria H and J.
B. Whether the Individual Has Mitigated the Security Concerns
Among the factors that may serve to mitigate security concerns raised by an individual’s alcohol
use are that “the individual acknowledges his or her … issues of alcohol abuse, provides
evidence of actions taken to overcome this problem, and has established a pattern of abstinence
(if alcohol dependent) or responsible use (if an alcohol abuser),” and that “the individual has
successfully completed inpatient or outpatient counseling or rehabilitation along with any
required aftercare, has demonstrated a clear and established pattern of modified consumption or
abstinence in accordance with treatment recommendations such as participation in meetings of
Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a
duly qualified medical professional or a licensed clinical social worker who is a staff member of
a recognized alcohol treatment program.” Adjudicative Guidelines, Guideline G, ¶ 23.
At the hearing, the Individual testified candidly regarding her past alcohol consumption and her
initial reluctance to admit that she had a problem with alcohol. Tr. at Tr. at 21. The Individual
acknowledged that although she did not drink alcohol every day, on the occasions that she did
drank, she drank too much, as if she “didn’t have an off switch.” Tr. at 20. After her August
2011 DUI arrest, the Individual knew she had made a mistake in driving after drinking at the
game and she regretted her actions, but she still did not believe she had an alcohol problem at
that time. Tr. at 63. According to the Individual, a person who used to be in her life had a
serious alcohol problem that interfered with that person’s personal and professional life. As a
result, the Individual’s perception of what constituted an alcohol problem was skewed. Tr. at 33,
64. However, the Individual’s evaluation with the DOE psychiatrist was “a wake-up call.” Tr. at
20. After the evaluation, she began to realize that she did indeed consume too much alcohol and
that her problem would continue to worsen over time if she did not address it. Tr. at 33.
The Individual testified that she has been abstinent from alcohol since October 2011, nearly five
months as of the hearing. She took her last drink at a party a few days before meeting with the
DOE psychiatrist. Tr. at 42. She no longer has any alcohol in her home and has disassociated
herself from the friends with whom she used to go out drinking. Tr. at 47, 49.
Following her evaluation with the DOE psychiatrist, the Individual researched local AA
meetings and worked out how to fit the meetings into her schedule. Tr. at 34-35. The Individual
began attending a meeting close to her home. Id. She initially felt very out of place, but
continued to attend. Tr. at 35. According to the Individual, she soon felt at ease at the meeting
and realized that AA was a good program for her and that she “needed to be there.” Tr. at 36-37.
Since attending her first AA meeting in late October 2011, the Individual has become very active
in the program. Tr. at 37-39, 53-54. She began working with a sponsor almost immediately
after starting in the program. Tr. at 39-40. The Individual testified that just the initial act of
contacting her sponsor took a great deal of courage for her because she had never met the
sponsor before she called her. Tr. at 40. The Individual’s AA meeting is very small and, at that
point, the Individual was the only woman in attendance. Tr. at 39-40. The chair of the meeting
suggested that the Individual call his wife to discuss whether she would sponsor the Individual
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and she did so. Id. Since that time, the Individual meets with her sponsor at least once a week,
speaks to her on the phone several times per week, and sees her at AA meetings they attend
together. Tr. at 41. The Individual’s sponsor is helping the Individual work on the twelve steps
of the AA program and, as of the hearing, the Individual was on step eight. Tr. at 55. The
Individual testified that she enjoys the AA program and looks forward to attending meetings. Tr.
at 46. The Individual attends meetings two to three times per week, and she was to begin
chairing an additional AA meeting two days after the hearing. Id. In addition to supporting her
sobriety, AA has helped the Individual in other ways. Tr. at 44-46. She testified that through the
work she has done in AA, she has become calmer and handles stress better. As a result, her
relationship with her children has gotten stronger and her home life is more peaceful and
fulfilling. Id. The Individual stated that AA “changed [her] life” and she plans to attend AA
meetings indefinitely. Tr. at 47.
Through her participation in AA, the Individual has learned that she cannot drink alcohol in
moderation and she intends to remain abstinent from alcohol in the future. Tr. at 67. She has a
strong support system to help her maintain that goal. Tr. at 66. For example, the Individual
relies on her sponsor and others in her AA meetings when she is under stress or is otherwise
faced with situations that might have led her to drink in the past. Tr. at 60-61. In addition, her
family and her friends are very supportive of her abstinence and her participation in AA. Tr. at
70.
The Individual’s testimony regarding her abstinence and her work in AA was corroborated by
her AA sponsor’s testimony, as well as that of her best friend. Tr. at 72-100, 112-32. The
Individual’s sponsor, who has been in AA for nearly 20 years, testified that the Individual is
becoming part of “the fellowship of AA” and goes out of her way to participate in the program.
Tr. at 75, 77. The sponsor further stated that the Individual is working the 12 steps of the
program and is doing well, adding that the Individual is nearly at the point where she can sponsor
someone else. Tr. at 78-81. According to the Individual’s AA sponsor, the Individual is highly
motivated and is utilizing all of the resources that AA has to offer in order to maintain her
abstinence. Tr. at 86. The sponsor also noted that the Individual has a good foundation in AA
and is likely to remain abstinent from alcohol if she continues with her current efforts. Tr. at 86,
95. The Individual’s best friend echoed the sentiments of the Individual’s sponsor. He stated
that in the past, he had confronted the Individual because he was concerned that she drank too
much and placed herself in potentially unsafe situations when she drank. Tr. at 116-19. He
stated that the Individual was not receptive to his concerns and continued to drink. Tr. at 119.
Now, however, the Individual no longer drinks alcohol, does not have alcohol in her home, and
is very active in AA. Tr. at 121. He further stated that the Individual “was proud” of her
sobriety and he believes she will remain abstinent in the future. Tr. at 128. According to her
best friend, the Individual has been in situations where others were drinking since beginning AA
and she did not have any difficulty remaining abstinent. Tr. at 123-25.
After listening to the hearing testimony, the DOE psychiatrist did not change his diagnosis of
alcohol abuse. Tr. at 134. As to the Individual’s prognosis, he cited as positive factors the
Individual’s nearly five months of abstinence, as well as her strong support system, her very
clear desire to remain abstinent, her recognition that she cannot drink in moderation, and her
disassociation from her drinking friends. Tr. at 137-40. The DOE psychiatrist was most
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impressed by the Individual’s insight into her alcohol problem, particularly since she denied
having a problem during his October 2011 evaluation. He stated that he has “rarely seen as sharp
a turnaround in recognition of the problem of alcohol from a very striking denial of a problem …
.” Tr. at 136. He noted that the Individual has “embraced her sobriety,” adding that he could not
think of anything else she should be doing to manage her alcohol problem. Tr. at 135-36. The
DOE psychiatrist found most compelling, however, the testimony regarding the Individual’s
consistent participation in, and strong commitment to, the AA program. Tr. at 134, 137-38, 141-
43. The DOE psychiatrist opined that the Individual was unlikely to drink again in the future
because “her foundation [in abstinence] is solid.” Tr. at 140. Therefore, he determined, based
on his prior experience in similar cases, the Individual’s risk of relapse was “low.” Tr. at 146.
After considering the hearing testimony and evaluating the record as a whole, I find that the
Individual has mitigated the security concerns raised by her consumption of alcohol. The
Individual has developed extraordinary insight into the problems caused by her past use of
alcohol. She has been abstinent from alcohol for nearly five months as of the date of the hearing
and intends to remain abstinent indefinitely. She no longer associates with the friends with
whom she used to go out drinking and her family and current friends are supportive of her
sobriety. In addition, the Individual has committed herself to the AA program and has made
considerable progress since she began attending meetings in October 2011. She attends meetings
on a regular basis, regularly meets with her sponsor to work on her participation in the program,
and is herself now chairing meetings. Both the Individual’s AA sponsor, who has nearly two
decades of experience in the program, and the DOE psychiatrist believe that a relapse in
unlikely. Given these factors, I find that the Individual no longer consumes alcohol, and has
demonstrated adequate evidence of rehabilitation and reformation. Accordingly, I conclude,
consistent with OHA precedent in alcohol abuse matters, that the Individual has mitigated the
Criteria H and J concerns cited in the Notification Letter. See, e.g., Personnel Security Hearing,
Case No., TSO-0853 (2010) (individual who engaged in treatment and five and one-half months
of abstinence demonstrated low risk of relapse); Personnel Security Hearing, Case No. TSO-
0559) (2007) (concerns raised by alcohol use mitigated by individual’s seven months of
abstinence, commitment to abstinence, participation in AA, and strong support system);
Personnel Security Hearing, Case No. TSO-0064 (2003) (individual who established five
months of abstinence, developed exceptional insight into alcohol problem, and actively
participated in AA demonstrated adequate evidence of rehabilitation and reformation); Personnel
Security Hearing, Case No. TSO-0768 (2009) (concerns raised by individual’s alcohol use
mitigated where psychiatrists agreed that risk of relapse was low).
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 and J of the
Part 710 regulations. I also find that the Individual has presented sufficient information to fully
resolve those concerns. Therefore, I 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 restore the Individual’s suspended access authorization.
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The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: March 16, 2012