PSH-12-0008

* 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: February 1, 2012 )
) Case No.: PSH-12-0008
)
___________________________________ )
Issued: May 3, 2012
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Hearing Officer Decision
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Kent S. Woods, Hearing Officer:
This Decision considers the eligibility of XXXXXXX XXXXXXX (hereinafter referred to as
“the individual”) to hold an access authorization under the regulations set forth at 10 C.F.R. Part
710, entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter
or Special Nuclear Material.” As explained below, it is my decision that the individual’s access
authorization should be restored.
I. BACKGROUND
The individual is employed by a DOE contractor, and has held a DOE access authorization for
several years. In late September 2011, the individual was arrested and charged with Careless
Driving and with Aggravated Driving While Intoxicated (Aggravated DWI). DOE Ex. 6. When
he reported these charges to his Local Security Office (LSO), the LSO conducted a Personnel
Security Interview (2011 PSI) with the individual in October 2011. 2011 PSI, DOE Ex. 9. In
November 2011, a DOE-consultant psychiatrist evaluated the individual, and memorialized his
findings in a Report of Psychiatric Examination (the Report, DOE Ex. 4).
In December 2011, the LSO suspended the individual’s access authorization and issued a
Notification Letter to the individual, together with a Summary of Security Concerns
(Enclosure 2) setting forth the information that created a substantial doubt about the individual’s
eligibility to hold a DOE security clearance. (DOE Ex. 1). Specifically, the LSO finds that the
individual was diagnosed by a DOE-consultant psychiatrist (the DOE-consultant Psychiatrist) as
meeting the Diagnostic Statistical Manual of the American Psychiatric Association IVth Edition
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TR (DSM-IV TR) criteria for Alcohol Abuse, without adequate evidence of rehabilitation or
reformation. The Notification Letter finds that this diagnosis and the individual’s history of legal
problems with alcohol have raised security concerns under the provisions of 10 C.F.R. § 710.8(h)
and (j). Enclosure 2, DOE Ex. 1.1
The individual requested a hearing (hereinafter “the hearing”) to respond to the concerns raised
in the Notification Letter. On February 3, 2012, the Office of Hearings and Appeals Director
appointed me the Hearing Officer in this case. At the hearing I convened in this matter, I
received testimony from nine witnesses. The LSO presented the testimony of the DOE-
consultant Psychiatrist. The individual testified and presented the testimony of his Human
Reliability Program evaluating psychologist (the HRP psychologist), his Employee Assistance
Program counselor (the EAP Counselor), his Substance Abuse Counselor, his supervisor, his
half-sister, his long-time friend, and his neighbor. Discussion at the hearing centered on the
individual’s misuse of alcohol and his past conduct that formed the bases for the LSO’s
Criteria H and J concerns, whether the individual had a diagnosable alcohol problem, and the
individual’s recent conduct and efforts at addressing his alcohol related issues.
II. APPLICABLE STANDARDS
A DOE administrative review proceeding under this Part is not a criminal case, in which the
burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this
type of case, we apply a different standard, which is designed to protect national security
interests. A hearing is “for the purpose of affording the individual an opportunity of supporting
his eligibility for access authorization.” 10 C.F.R. § 710.21(b)(6). The burden is on the
individual to come forward at the hearing with evidence to convince the DOE that granting or
restoring his access authorization “would not endanger the common defense and security and
would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). This standard
reflects a presumption against granting or restoring a security clearance. See Dep’t of Navy v.
Egan, 484 U.S. 518, 531 (1988) (the “clearly consistent with the interests of national security
test” for the granting of security clearances indicates “that security determinations should err, if
they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990),
cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security
clearance).
III. ANALYSIS OF TESTIMONY AND FINDINGS OF FACT
A. The Individual’s Diagnosis of Alcohol Abuse
The misuse of alcohol to excess is a security concern under Criterion J because it can lead to the
exercise of questionable judgment. See Revised Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information, Assistant to the President for National Security
1 The LSO invokes Criterion J when an individual has been or is a user of alcohol habitually to excess, or has been
diagnosed by a psychiatrist or licensed clinical psychologist as suffering from alcohol abuse or dependence without
adequate evidence of rehabilitation or reformation. 10 C.F.R. § 710.8 (j). Criterion H concerns are based on a
finding that an individual has an illness or mental condition which, in the opinion of a psychiatrist or licensed
clinical psychologist, causes, or may cause, a significant defect in judgment or reliability. 10 C.F.R. § 710.8 (h).
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Affairs (December 29, 2005) (Adjudicative Guidelines), Guideline G, ¶ 21. In his 2011 Report,
the DOE-consultant Psychiatrist opined that the individual met the DSM-IV TR criteria for
Alcohol Abuse. In his response to the Notification Letter and at the hearing, the individual
contested this diagnosis, stating that he has not had the recurrent problems with alcohol within a
twelve-month period that are a required basis for this diagnosis. At the hearing, the EAP
Counselor and the HRP psychologist testified that they agreed with the individual’s position.
Hearing Transcript (TR) at 22, 87. The individual’s half-sister, long-time friend, neighbor, and
his supervisor testified that they had not observed the individual misusing alcohol. TR at 77, 53,
63-64 and 44.
As a basis for his diagnosis of Alcohol Abuse, the DOE-consultant Psychiatrist refers to the
individual’s arrests for DWI in 2003 and 2011,2 and to reports that the individual drank to the
point of intoxication on other occasions in 2003 and 2004. With respect to the individual’s 2011
arrest for Aggravated DWI, the DOE-consultant Psychiatrist noted that the incident occurred
after the individual had assured the LSO at a 2006 PSI that he would not drink and drive, and
that the individual’s blood alcohol level was measured at over three times the legal limit at his
2011 arrest. He also noted that the individual admitted at the 2011 PSI that he felt intoxicated on
the evening of his arrest, but still decided to drive, and that, because he was nervous and
exercising poor judgment at the time of his 2011 arrest, he told the arresting officer that he had
not been drinking. Report at 4, 8. The DOE-consultant Psychiatrist did not accept the
individual’s assertion at their interview that he had only driven while intoxicated on the two
occasions that resulted in his DWI arrests. In his Report, the DOE-consultant Psychiatrist refers
to a study based on the number of drivers found to have blood-alcohol levels above the legal
limit, which concludes that for every DWI arrest, there are likely to be on the order of 100
episodes in which the person has driven with a blood-alcohol level above the legal limit but was
not arrested. Id. at 4, citing D. Binder, MD; Albuquerque Journal, February 12, 2002. The
DOE-consultant Psychiatrist stated that, based on this research, he generally considers that any
arrest after the first for DWI constitutes evidence of “recurrent impairment from alcohol use”,
which is sufficient to meet the DSM-IV criteria for Alcohol Abuse. Id. at 8. After listening to
the hearing testimony of the individual and his witnesses, the DOE-consultant Psychiatrist
testified that he continued to believe that his diagnosis of Alcohol Abuse was technically
justified and warranted, but he stated that the individual’s problem was “on the borderline or
mild segment of alcohol use disorders.” TR at 164.
I find that the DOE-consultant Psychiatrist correctly diagnosed the individual. The individual’s
blood-alcohol measurements and the arresting officer’s observations in his arrest report indicate
that the individual was highly intoxicated at the time of his 2011 arrest. DOE Exhibit 6 at 1.
Moreover, the individual admitted that he exercised poor judgment in making a decision to drive
when he was intoxicated and in telling the arresting police officer that he had not consumed any
alcohol. Based on this evidence of poor decision-making by the individual after consuming
alcohol, I agree that the DOE-consultant Psychiatrist’s conclusion that within the twelve months
2 Following the Hearing, the individual submitted, through the DOE counsel, a court order indicating that on
April 17, 2012, the court dismissed the charges relating to his September 29, 2011, arrest. The court order explains
that the dismissal is due to the state’s failure to follow its rules for setting the trial date. See Court Order attached to
DOE Counsel’s April 25, 2012, e-mail. This dismissal for technical reasons does not mitigate the security concerns
raised by the individual’s arrest and by the allegations set forth in the charging document. See DOE Ex. 6.
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prior to his 2011 arrest, the individual in all likelihood broke the law and endangered himself and
others by operating a motor vehicle with blood-alcohol levels above the legal limit. I therefore
conclude that the individual was properly diagnosed with Alcohol Abuse by the DOE-consultant
Psychiatrist based upon “recurrent impairment from alcohol use.” I will therefore proceed to
consider whether the individual has demonstrated rehabilitation and reformation from that
diagnosis.
2. Whether the Individual Has Resolved the Criteria H and J Concerns
In deciding whether an individual has mitigated a security concern, a Hearing Officer must
consider all relevant factors having a bearing on an individual’s fitness to obtain or retain a
security clearance. See 10 C.F.R. § 710.7(c). According to the Adjudicative Guidelines, among
the factors that may serve to mitigate security concerns raised by an individual’s alcohol disorder
or excessive use of alcohol are: that the alcohol misuse happened so long ago, was so infrequent,
or happened under such circumstances that it is unlikely to recur or does not cast doubt on the
individual’s current reliability, trustworthiness, or good judgment. Other factors that may
mitigate alcohol-related concerns are: that the individual has provided evidence of actions
undertaken to overcome an alcohol problem and has established a pattern of abstinence or
responsible use; that the individual has completed a treatment program and has demonstrated an
established pattern of modified consumption of alcohol or abstinence; or that the individual is a
current employee who is participating in a counseling or treatment program without a history of
previous treatment or relapse and is making satisfactory progress. Adjudicative Guidelines,
Guideline G, ¶ 23; see, e.g., Personnel Security Hearing, Case No. TSO-1020 (September 9,
2011) (individual resolved concerns raised by alcohol dependence disorder by proving that he
received therapy for alcohol dependence problem and that he had abstained from alcohol for 18
months).3 As discussed below, I find that the individual has mitigated the LSO’s Criteria J and
H concerns.
As an initial matter, I find that the individual’s hearing testimony concerning his 2011
Aggravated DWI arrest indicates that he has been honest about his misuse of alcohol and
understands that his excessive drinking led to a serious lapse of judgment. The individual
testified that prior to his 2011 arrest, he was drinking to intoxication about one or two times a
year. TR at 128. He stated that on the day of his arrest, his neighbor brought over a cooler
containing cans of beers left over from a party. The individual stated that he consumed about
eight of these beers while doing yard work, and then made “a bad decision to think that it would
be all right to drive to [my girlfriend’s] house.” TR at 109-111.
I also find that the individual acted responsibly in responding to the lapse in judgment caused by
his misuse of alcohol. The individual testified that he has maintained abstinence from alcohol
since his September 2011 arrest, and this sobriety is confirmed by the testimony of his witnesses.
TR at 10, 75-76, 49, 58 and 65. In addition, he has actively sought to educate himself
concerning the effects of alcohol. He testified that he received no alcohol education after his
2003 DWI, but that following his 2011 arrest he sought counseling from the EAP Counselor in
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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order to “correct this problem.” Id. at 111-112, 128. He stated that in his eight sessions with the
EAP Counselor, he learned about the different effects of alcohol, and that alcoholism is a
disease. TR at 129. The individual’s EAP Counselor testified that the individual took the
initiative to seek counseling from him, and demonstrated a genuine desire to deal appropriately
with the issues raised by his DWI. TR at 13. He stated that in their sessions, the individual was
willing to own up to his alcohol consumption, that he appreciated the seriousness of his lack of
judgment that resulted in his 2011 arrest, and that he learned from the information that the EAP
Counselor provided to him. TR at 21.
Following this counseling, the individual enrolled in a local alcohol treatment program as a
means of following the DOE-consultant Psychiatrist’s recommendations in his Report for
demonstrating rehabilitation and reformation. The individual testified that in the treatment
program, he is learning a lot about the problems arising from alcohol. TR at 130-131. He stated
that he has had five sessions in the treatment program, and plans to continue even if his security
clearance is revoked. TR at 131-132. The individual’s Substance Abuse Counselor testified that
although the individual is very open in expressing that he is not convinced that he has an alcohol
problem, he is also cooperative and accepts treatment to increase his understanding about how he
has used alcohol in the past. TR at 152-153.
I find that the individual’s testimony assessing his past use of alcohol was honest and appropriate
for someone on the borderline of an alcohol use disorder. He testified that he continues to regard
his 2011 Aggravated DWI as an anomalous event, and believes that if he had a serious problem
with alcohol, it would have been evident before September 2011. In this regard, he explained
that in the last several years, he has been subject to hundreds of random breathalyzer tests in the
workplace, and has passed them all. TR at 134. The HRP Psychologist confirmed this assertion.
She testified that she is the individual’s evaluating psychologist for the HRP, and that she never
had any concerns about his use of alcohol prior to his 2011 DWI. TR at 81-82. Despite having
doubts about having an alcohol problem, the individual testified that he appreciated the DOE’s
concerns about his future judgment and reliability when consuming alcohol. He stated that he
would be willing to continue abstaining from alcohol indefinitely if that is necessary to convince
the DOE that he will exercise good judgment. TR at 139-140.
The individual’s counselors and medical professionals who testified in this proceeding uniformly
considered the individual to be at low risk for future alcohol problems. The HRP Psychologist
stated that she considered the individual’s 2011 DWI arrest to be an anomalous instance of
exceptionally poor judgment by the individual, and that the individual was very unlikely to make
that mistake again. TR at 81-82, 92. The EAP Counselor testified that he believed that the
individual could maintain his current sobriety indefinitely, although he did not believe that the
individual fell into the category of people who should never consume alcohol. He opined that
the individual’s prognosis is very good that he will have no future problems with alcohol. TR at
23-24. The Substance Abuse Counselor testified that the individual’s prognosis is very good
because he has a very positive attitude about not drinking again in order to keep his job. TR at
154-155.
Finally, after listening to the testimony of the individual and his witnesses, the DOE-consultant
Psychiatrist testified that the individual has demonstrated adequate evidence of rehabilitation and
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reformation from the diagnosis of Alcohol Abuse based on six months of sobriety coupled with
EAP counseling and alcohol treatment. He stated that due to the mild nature of the individual’s
alcohol use disorder, under the facts of this case, the six months of abstinence and treatment are
sufficient to demonstrate rehabilitation and reformation from the diagnosis. TR at 164. He also
opined that the individual’s efforts to voluntarily comply with the recommendations of the
Report by seeking EAP counseling and alcohol treatment, the positive prognosis made by the
individual’s treatment providers, and the individual’s commitment to his work indicate that he is
at low risk to have future alcohol problems. TR at 165.
Accordingly, based on this evidence, I conclude that the individual has mitigated the LSO’s
Criteria J and H concerns.
IV. CONCLUSION
For the reasons set forth above, I find that the individual was properly found to suffer from
Alcohol Abuse, which is derogatory information under Criterion J, and that his Alcohol Abuse
caused a significant defect in his judgment and reliability, raising a concern under Criterion H.
Further, I find that this derogatory information under Criteria J and H has been mitigated by
evidence of rehabilitation and reformation. Accordingly, after considering all of the relevant
information, favorable or unfavorable, in a comprehensive and common-sense manner, I
conclude that the individual has demonstrated that restoring his access authorization would not
endanger the common defense and would be clearly consistent with the national interest. The
individual or the DOE may seek review of this Decision by an Appeal Panel under the regulation
set forth at 10 C.F.R. § 710.28.
Kent S. Woods
Hearing Officer
Office of Hearings and Appeals
Date: May 3, 2012