PSH-12-0003

* 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-12-0003
__________________________________________)
Issued: May 2, 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 not restore the Individual’s access authorization at this time.
I. BACKGROUND
In September 2011, the Individual, a security clearance holder, was arrested for Driving While
Intoxicated (DWI) and subsequently reported the arrest to the Local Security Office (LSO) at the
DOE Facility where he worked. DOE Exhibit (Ex.) 19. Neither a September 2011 personnel
security interview (PSI) nor a DOE-Contractor Psychologist’s (DOE Psychologist) examination
and evaluative report of the Individual resolved the security concerns raised by his 2011 DWI
arrest. Consequently, the LSO informed the Individual, in a January 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.
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. At the hearing, the DOE counsel introduced
29 exhibits into the record (Exs. 1-29) and presented the testimony of one witness, the DOE
Psychologist. The Individual presented his own testimony, as well as the testimony of a
psychologist (Individual’s Psychologist), his girlfriend (Girlfriend), his mother, and six other
witnesses who had served with the Individual in the military or had worked with the Individual at
the DOE facility. See Transcript of Hearing, Case No. PSH-12-0003 (hereinafter cited as “Tr”).
The Individual additionally submitted four exhibits (Exs. A-D) into the record.
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) (Egan)
(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 J, K, and L
1. Alcohol-Related Arrests and 2011 Report
The facts of this case are essentially undisputed. Tr. at 164-66. The Individual has a history of
seven alcohol-related arrests during the period 1998 through 2011, including arrests for DWI in
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2002 and 2011 and three arrests involving physical altercations after consuming alcohol.2 Ex. 29
at 74-75, 107, 137-140. In PSIs conducted in 2008, 2010, and 2011, the Individual admitted that
he had either consumed alcohol or was intoxicated prior to all of the arrests except a 2001 arrest
for being a Minor in Possession of Alcohol. Ex. 26 at 25-26, 33-34, 43, 47-49, 54-56, 67, 69-76;
Ex. 28 at 56-67, 77-86, 103, 113-14; Ex. 27 at 50-57.
In November 2011, the DOE Psychologist performed a psychological assessment of the
Individual concerning his alcohol misuse and issued a report (Report). Ex. 3 at 1; Ex. 13. In the
Report, the DOE Psychologist noted that, although the Individual had significant periods of
moderate alcohol consumption (three to four beers over three to four hours), the Individual’s
pattern of alcohol consumption was “episodically heavy” (“binge drinking”) and resulted in legal
difficulties. Ex. 13 at 8. Given the Individual’s admission that he consumed significant amounts
of alcohol five or six times a year, a pathological use of alcohol, the DOE Psychologist
determined that the Individual suffered from Alcohol Related Disorder, Not Otherwise Specified
(NOS). Ex. 13 at 7-8. Further, the Individual’s ability to tolerate large quantities of alcoholic
drinks to a point of disorientation was sufficient evidence to conclude that the Individual’s
judgment and reliability were “uncertain.” Ex. 13 at 7-8.
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 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).3 Given the DOE Psychologist’s concludsion that the
Individual suffers from Alcohol Related Disorder, NOS, a condition that could cause a defect in
judgment or reliability, Ex. 4 at 10, I find that the LSO properly invoked 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; PSH-11-0010, slip op. at 4.
Although the DOE Psychologist did not make a final diagnosis of either Alcohol Dependence or
Alcohol Abuse, Ex. 13 at 7-8, the DOE Psychologist noted that during two periods in the
2 The Individual has been arrested for: Criminal Mischief (1998); Minor in Possession of Alcohol (2001); Disorderly
Conduct (2001); DWI (2002); Assault Causing Bodily Injury (2007); Assault by Contact (2010); and DWI (2011).
3 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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Individual’s life, 1995-1998 and 2000-2002, the Individual would have been properly diagnosed
as suffering from Alcohol Abuse. Ex. 13 at 8. Given these findings, I find that the LSO properly
invoked Criterion 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. Adjudicative
Guidelines, Guideline J; Personnel Security Hearing, Case No. TSO-1111 (January 25, 2012).
Given the information indicating that the Individual has recently been arrested for DWI in 2011,
and has been arrested on a number of occasions from 1998 through 2010, 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 various
arrests, almost all of which were alcohol-related.4
The Individual’s non-expert witnesses testified as to the Individual’s excellent military service,
his stellar performance as an employee at the DOE facility and their trust in the Individual’s
reliability and judgment. Tr. at 15-17, 33-35, 39-42, 97-99, 109-10, 115-18, 133-34. As to the
Individual’s prior history of alcohol consumption, they testified that the Individual, especially
when he was younger, would consume alcohol to excess on various occasions but otherwise
consumed moderate amounts of alcohol. Tr. at 13-14, 41-43, 49-52, 66-70, 72-73, 76-77, 105-06,
138-42, 146-50, 160-61. The witnesses also testified as to the dramatic impact the Individual’s
arrest in September 2011 had on him. Tr. at 21, 33, 84-85. Four witnesses testified that the last
time they had observed the Individual consume alcohol was in early September 2011. Tr. at 34,
63, 108-09, 150. The Individual’s attendance at the treatment program and Alcoholics
Anonymous meetings was also confirmed by the witnesses. Tr. at 26, 58, 77-78, 140, 152.
The Individual testified that the 2011 DWI arrest occurred after a disagreement with his
Girlfriend. Tr. at 174; see Tr. at 55-56 (Girlfriend’s account of disagreement). After he reported
his 2011 DWI arrest to his employer and the LSO, he contacted the facility’s Employee
Assistance Program (EAP) to receive assistance regarding his alcohol misuse. Tr. at 176.
Pursuant to the EAP’s recommendations, the Individual entered an intensive outpatient treatment
program that entailed two-hour meetings for four days a week for five weeks. Tr. at 176-77.
During this program, the Individual learned about his alcohol disorder and realized that his use of
alcohol could cause problems in his life. Tr. at 177-78. The Individual is now attending
4 Both the DOE Psychologist and the Individual’s Psychologist testified that the Individual does not have any
characterlogical problem that would lead the Individual to commit criminal activities in the absence of alcohol. See
Tr. at 276 (Individual’s Psychologist); Tr. at 281-82 (DOE Psychologist’s opinion that the Individual is morally
“very substantial”).
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Alcoholics Anonymous (AA) meetings and has a sponsor.5 Tr. at 196, 199. The program also
gave him the tools to use to ensure that he would not use alcohol in the future. Tr. at 179. The
Individual testified that he completed the treatment program in October 2011 and currently
participates in the program’s “aftercare” program. Tr. at 179-81. His last consumption of alcohol
occurred on the morning of September 3, 2011, and, as of the date of the hearing, the Individual
has been abstinent for 201 days. Tr. at 179.
The Individual’s Psychologist testified as follows concerning the Individual’s treatment and
prognosis. She has treated the Individual during the intensive outpatient program and on an
individual basis. Tr. at 245. When the Individual entered the treatment program, he suffered from
Alcohol Abuse. Tr. at 245. However the Individual no longer meets the criteria for such a
diagnosis. Tr. at 245-46. The Individual’s history of alcohol misuse can be described as “binge
drinking.” Tr. at 246. The Individual had a positive response to the treatment program and
participated fully in discussions. Tr. at 250. The Individual’s Psychologist noted the Individual’s
increasing conviction that he should not use alcohol ever again. Tr. at 255. In her opinion, the
Individual’s prognosis is “very good” and the Individual’s changes with regard to alcohol will
continue. Tr. at 251, 269. The Individual’s Psychologist concluded that she is very confident
with regard to the Individual’s rehabilitation from his alcohol problem. Tr. at 279.
The DOE Psychologist testified that the testimony confirmed his prior opinion regarding the
Individual’s good overall morals and psychological health. Tr. at 282. The DOE Psychologist
believes that the Individual now realizes he has an alcohol problem. Tr. at 282-83. However, the
DOE Psychologist believes that the Individual’s current abstinence may be at risk because of the
nature of the Individual’s relationship with his Girlfriend. The DOE Psychologist noted that the
Individual’s 2011 DWI was triggered by an argument with his Girlfriend and that the Individual
and his Girlfriend have already experienced a separation of over a year in the past because of
relationship difficulties. Tr. at 286; see Ex. 13 at 4. Consequently, the DOE Psychologist does
not believe that the Individual has fully addressed the issue of his relationship with his Girlfriend
as being a possible trigger for the problematic consumption of alcohol.6 Tr. at 284-85. The DOE
Psychologist also found that the fact that the Individual was unable to contact his sponsor the
night before the hearing in order to arrange for his testimony indicated that he did not have a
close relationship with his sponsor. Tr. at 289.
The DOE Psychologist also testified that, because there are no “good treatment protocols” to use
in cases of binge drinking, the only method to determine rehabilitation is the passage of time. Tr.
at 288. Consequently, given the information before him, the DOE Psychiatrist opined that, until
the Individual has demonstrated 12 months of abstinence, he could not conclude that the
Individual had demonstrated adequate evidence of rehabilitation or reformation. Tr. at 290.
All of the evidence leads me to find that the incidents giving rise to the Notification Letter are
related to the problematic use of alcohol, rather than any character flaw in the Individual.
5 The Individual was not able to contact his sponsor the night before the hearing to arrange for the sponsor’s
testimony at the hearing. Tr. at 199. The sponsor did submit a statement after the hearing attesting to the Individual’s
work on the 12-step AA program and recommending that the Individual’s clearance be restored. Ex. D at 2.
6 The DOE Psychologist recommended that the Individual and his Girlfriend enter into couples therapy. Tr. at 296.
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Indeed, the testimony supports a conclusion that the Individual has an exemplary record as an
employee and that the Individual’s military service to the nation is beyond reproach. Ex. C
(Individual’s military fitness report). Accordingly, the only issue here is whether the Individual
has demonstrated reformation and rehabilitation from his sporadic excessive use of alcohol –
binge drinking. As discussed above, the Individual had been abstinent and engaged in a recovery
activities for over six months at the time of the hearing. The difference in opinion of the two
experts concerns how much abstinence is needed to provide adequate evidence of rehabilitation.
Both experts have testified that, with regard to binge drinking, there are no established protocols
or standards for treatment of binge drinking. Tr. at 271 (Individual’s Psychologist testimony that
there are few studies on the treatment of binge drinkers); Tr. at 288 (DOE Psychologist
testimony regarding treatment protocols). The high standard required to establish eligibility for a
security clearance argues that the DOE Psychologist’s 12-month period of abstinence should be
required in this case to establish rehabilitation. Egan, 484 U.S. at 531; 10 C.F.R. §710.27.
Further, the two unfavorable factors noted by the DOE Psychologist, the AA sponsor’s apparent
lack of availability and possible future relationship difficulties between the Individual and his
Girlfriend, also argue against a shorter period of required abstinence. While I believe that the
Individual will successfully complete a 12-month period of abstinence, I cannot find that, as of
the date of the hearing, he has presented sufficient evidence of rehabilitation or reformation to
resolve the concerns raised by his past misuse of alcohol under Criteria H. J, and L.
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: May 2, 2012