PSH-11-0035

* 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-11-0035
__________________________________________)
Issued: April 19, 2012
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Hearing Officer Decision
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Richard A. Cronin, Jr., Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXXXX (“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 Exhibit (Ex.) 3 at 1; Ex. 4 at 2; Ex. 8 at 2; Ex. 9 at 2. The Individual was
arrested for Driving Under the Influence (DUI) in August 2011 and reported the arrest to the
Local Security Office (LSO). Ex. 6; Ex. 8 at 58, 60-63. This arrest prompted the LSO to conduct
a Personnel Security Interview (PSI) with the Individual in August 2011 and to refer the
Individual for an examination by a DOE-contractor psychologist (DOE Psychologist). Ex. 8. The
DOE Psychologist examined the Individual in October 2011 and issued an evaluative report
(Report). Ex. 3.
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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Because the neither the August 2011 PSI nor the DOE Psychologist’s examination resolved the
security concerns raised by the Individual’s 2011 DUI arrest, the LSO informed the Individual in
a November 2011 notification letter (Notification Letter) that derogatory information existed
which raised security concerns under 10 C.F.R. § 710.8(h), (j), and (l) (Criteria H, J, and L,
respectively) and that his security clearance was suspended. 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 nine exhibits into the record (Exs. 1-9) and presented the testimony of
one witness, the DOE Psychologist. The Individual, represented by his mother (Mother),
presented his own testimony, as well as the testimony of four witnesses: his Mother, his
supervisor (Supervisor), a co-worker (Co-Worker), and the DOE facility’s Employee Assistance
Program counselor (EAP Counselor). See Transcript of Hearing, Case No. PSH-11-0035
(hereinafter cited as “Tr.”) The Individual submitted 11 exhibits (Exs. A-K).
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 J, K, and L
1. Alcohol Misuse, Psychological Evaluation, and Traffic Citations
Pursuant to a request that the Individual be granted a security clearance, the LSO conducted a
PSI with the Individual in August 2008. Ex. 9; Tr. at 140. During the 2008 PSI, the Individual
admitted that, during the period August 2007 through November 2007, he consumed seven to 15
shots of “hard” alcohol twice a month. Ex. 9 at 27-28, 37. During the PSI, the Individual stated
that he understood the DOE’s concern with excessive alcohol consumption and expressed his
intention not to consume alcohol in the future. Ex. 9 at 29, 37-39.
In August 2011, the Individual reported to the LSO that he had been recently arrested for Driving
Under the Influence (DUI).2 Ex. 6 at 3. At the time of his arrest, two breath tests indicated breath
alcohol content levels of 0.11 and 0.12 g/210L, each of which exceeded the state’s limit of
0.08g/210L. Ex. 6 at 3. After this arrest, the LSO conducted the 2011 PSI with the Individual.
Ex. 8. During the 2011 PSI, the Individual admitted consuming two 22 ounce (oz.) containers of
beer, a 12 oz. container of beer, as well as 8 or 9 “shots” of different liquors over a four and one-
half hour period before the DUI arrest. Ex. 8 at 49-51, 53-57, 71. Additionally, the Individual
admitted that he had driven in an intoxicated stated six or seven times during his life. Ex. 8
at 156-57. The Individual also revealed that he had been stopped for speeding four times, and on
two of those occasions received citations – once in 2009 and once in 2010. Ex. 8 at 86-89, 91-
92, 94.
After the 2011 PSI, the Individual was examined by the DOE Psychologist. In her Report, the
DOE Psychologist found that the Individual had given her inconsistent reports about his prior
alcohol use when compared to information the Individual provided in the 2008 PSI. The DOE
Psychologist stated in the Report that this finding raised a question regarding his judgment and
reliability. Ex. 4 at 9. She also found that, because the Individual had been stopped for speeding
four times and had been arrested for DUI in 2011, the Individual had demonstrated a disregard
for law.3 Ex. 4 at 9. With regard to the Individual’s use of alcohol, she found that the Individual
was a user of alcohol habitually to excess. Ex. 4 at 10. As support for this finding, the DOE
Psychologist cited the Individual’s “binge drinking” along with the Individual’s underreporting
of his alcohol consumption. Ex. 4 at 10. She also found that the Individual could be properly
diagnosed as suffering from Alcohol Related Disorder, Not Otherwise Specified (NOS), and that,
given the findings described above, the Individual suffered from a mental condition or illness
which may cause a significant defect in judgment and reliability. Ex. 4 at 10-11.
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
2 The Individual was also cited for speeding at the time of this arrest. Ex. 6 at 4.
3 The Notification Letter only cited the speeding incidents which resulted in a citation.
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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,
Guideline I. Conduct involving such psychological conditions can raise questions about an
individual’s ability to protect classified information. Personnel Security Hearing, Case No.
PSH-11-0010 (March 1, 2012) (PSH-11-0010) (Alcohol Related Disorder, NOS, found to raise
security concerns under Criterion H).4 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; PSH-11-0010, slip op. at 4. In her Report, the DOE Psychologist concluded that the
Individual had used alcohol habitually to excess and suffered from Alcohol Related Disorder,
NOS, conditions that could cause a defect in judgment or reliability. Ex. 4 at 10. In light of these
determinations, I find that the LSO properly invoked Criteria H and J.
Criterion L concerns information tending to show that an 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). Criminal conduct calls into question a
person’s ability or willingness to comply with laws, rules, and regulations. Adjudicatory
Guidelines, Guideline J; Personnel Security Hearing, Case No. TSO-1111 (January 25, 2012).
Given the information indicating that the Individual has been recently been arrested for DUI and
cited for three speeding citations, the LSO had sufficient grounds to invoke Criterion L.
B. Whether the Individual Has Mitigated the Security Concerns
With regard to the issue of mitigation, I will consider the Criteria H, J and L concerns together.
The Criteria H and J concerns both arise from the Individual’s misuse of alcohol. The Criterion L
derogatory information described in the Notification Letter consists of the Individual’s two
speeding citations and his 2011 DUI arrest. At the hearing, the Individual presented testimony to
establish that he has abstained from alcohol for seven months and that he is now rehabilitated
from his alcohol problem. The relevant testimony is summarized below.
The Individual testified that his last consumption of alcohol was in August 2011 and his
intention is to never consume alcohol again. Tr. at 112, 120. The Individual believes that the
2011 DUI arrest was an isolated incident which represents a serious mistake in judgment. Tr. at
111. As a result of the arrest, the Individual entered a local outpatient alcohol education program
and began to receive counseling from the EAP Counselor. Tr. at 112; Ex. K. In the outpatient
program, he receives personal counseling and is educated on alcohol disorders. Tr. at 121-22. In
December 2011, the Individual began the outpatient program and has learned about alcohol-
4 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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related topics, such as triggers, emotions, and coping strategies. Tr. at 112-13. In this regard, the
Individual now limits the amount of time he spends with friends that could subject him to peer
pressure to consume alcohol. Tr. at 116. He also has acquired new friends who do not consume
alcohol and prefer to play sports or video games. Tr. at 116. The woman he now dates is a non-
consumer of alcohol. Tr. at 116. Further, the Individual now considers his family to be his most
important support system. Tr. at 121. If he were to be tempted to consume alcohol, he would be
able to discuss the situation with his parents. Tr. at 123.
The Individual plans to continue with the outpatient program for as long as he can continue to
learn about his alcohol disorder. Tr. at 113-14. He continues to attend even though he feels a bit
out of place since, unlike himself, most of the people who attend the program have had
significant personal and family losses in their lives due to alcohol. Tr. at 113. He believes that he
has experienced significant personal growth as a result of this incident and is confident he will
not make a similar mistake again. Tr. at 113. He also intends to continue counseling with the
EAP Counselor. Tr. at 113-14. He believes that the knowledge he has gained from these sessions
will further reduce the possibility of misusing alcohol. Tr. at 114.
The EAP Counselor testified that he was approached by the Individual for counseling in August
2011, shortly after the Individual’s 2011 DUI arrest. Tr. at 63. He recommended that the
Individual seek an outpatient treatment program and also agreed to counsel the Individual
individually. Tr. at 64-65. He has seen the Individual for 12 sessions totaling approximately nine
and one-half hours. Tr. at 64, 69. In their counseling sessions, the EAP Counselor has
encouraged the Individual to make a cost/benefit analysis of alcohol consumption. Tr. at 73.
The EAP Counselor did not “necessarily disagree” with a diagnosis of Alcohol Related Disorder,
NOS.5 Tr. at 79. However, with regard to findings cited by the DOE Psychologist in her Report
as supporting her diagnosis, the EAP Counselor believes that these findings are now no longer
applicable to the Individual. Tr. at 75. Specifically, the EAP Counselor testified that the
Individual now believes that he has problem with alcohol. Tr. at 75. As to the Individual’s lack
of candor, the EAP Counselor believes that this was probably due to a faulty memory aggravated
by the use of alcohol during the period surrounding his 2011 DUI arrest. Tr. at 77. Further, the
Individual’s one extended period of significant alcohol consumption occurred while he was a
college student and college students generally tend to have increased levels of alcohol
consumption. Tr. at 81.
While the EAP Counselor believes that a 12-month period of abstinence is a significant
milestone for the determination of the recovery status of a person suffering from serious alcohol
problems, he does not believe that, in the Individual’s case, a 12-month period is necessary to
5 The Individual was examined by an Occupational Medicine psychologist (OM Psychologist) regarding the
Individual’s Fitness for Duty in the DOE’s Human Reliability Program shortly after the 2011 DUI arrest. Ex. J. In
this report, the OM Psychologist found that the Individual did not have an alcohol use disorder and that the DUI
arrest did not present “a pattern of concern.” Ex. J at 3. The OM Psychologist, who has since left the facility,
suggested that the Individual’s file be kept open until he could review the police report of the arrest and consult with
the EAP Counselor. Ex. J at 3. The EAP Counselor testified that after the OM Psychologist consulted with him, the
OM Psychologist reaffirmed his belief that the Individual did not have an alcohol use disorder and that the
Individual’s risk of relapse was low. Tr. at 92, 103.
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find that the Individual is rehabilitated. Tr. at 74. The Individual’s attendance in the outpatient
treatment center and his counseling has given the Individual the tools to resist social temptations
to use alcohol in an inappropriate manner. Tr. at 88-89. Additionally, the Individual’s family
provides a strong support group for the Individual. Tr. at 92. In the EAP Counselor’s opinion, the
Individual risk’s relapse into problematic alcohol consumption was “low.” Tr. at 92.
The Individual’s Mother testified that the Individual now lives with her and the Individual’s
father and that the three often attend outpatient treatment meetings together as a family. Tr. at 22.
Since the arrest, the Individual does not go out very often. Tr. at 22. The Individual has
expressed his remorse for the arrest and how it has caused his family financial hardship. Tr. at
22. She believes the Individual, who just turned 23 years old several weeks ago, has learned a
lesson from his “young and foolish mistakes” and now realizes the impact of his alcohol misuse
on his personal, family, and work life.6 Tr. at 21, 23.
After listening to all of the testimony, the DOE Psychologist offered an update to her opinion
concerning the Individual. The DOE Psychologist testified that she heard a number of positive
factors regarding the Individual’s rehabilitation such as the Individual’s belief that he has a
problem and the testimony from the Individual’s Mother that indicates the Individual has a
strong support system in place. Tr. at 132. Additionally, the DOE Psychologist was impressed
with the fact that the Individual continues to attend the outpatient program despite the fact he
does not like parts of the program. Tr. at 132. She also believes the Individual has more
credibility now than when she first interviewed him. Tr. at 133-34. She also noted in her
testimony that the Individual is developing refusal skills with regard to times when he may be
asked to consume alcohol and that the Individual has activities, such as basketball and video
games that do not involve the consumption of alcohol (“sober fun”). Tr. at 133. Given all of
these positive factors, the DOE Psychologist now believes that the Individual has a “low” risk of
relapse and that the Individual’s current seven-month abstinence, combined with his current
treatment program, is sufficient evidence that the Individual is now rehabilitated from his alcohol
problem. Tr. at 137.
In reviewing the evidence before me, I find that the Individual has resolved the security concerns
raised by the Criteria H and J derogatory information. Both the EAP Counselor and the DOE
Psychologist have given their expert opinions that, as of the date of the hearing, the Individual
has demonstrated sufficient evidence to conclude that he is rehabilitated from his alcohol
problem. I found the Individual and his Mother’s testimony to be persuasive as to the length of
the Individual’s abstinence, his participation in the outpatient program, the changes that the
Individual has made in his life in response to his outpatient program and, most importantly, the
Individual’s acceptance of the idea that he does have a problem with alcohol. In sum, I find that
the Individual has resolved the concerns raised by the Criteria H and J derogatory Information.
See Personnel Security Hearing, Case No. PSH-11-0034 (March 16, 2012) slip op. at 6 (and
cases cited therein). The Individual’s rehabilitation from his alcohol disorder, as well as the
6 The Supervisor testified as to the Individual’s excellent integrity and work record as well as his perception that he
had never seen any indication that the Individual suffered from an alcohol abuse problem. Tr. at 48, 49. The Co-
Worker, who works in as a Labor Relations Manager for the Individual’s employer, testified that the Individual has
not been subject to any workplace discipline while employed at the DOE facility. Tr. at 57.
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passage of time and his increased maturity since the speeding citations, resolves the Criterion L
concerns. See Personnel Security Hearing, Case No. TSO-0098 (November 19, 2004) slip op. at
6 (Criterion L alcohol-related traffic offences may be mitigated by sufficient evidence of
rehabilitation or reformation from an underlying alcohol problem).
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 presented sufficient information
to resolve the concerns raised by the Criteria H, J, and L derogatory information. 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.
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: April 19, 2012