PSH-12-0015

* 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 )
Filing Date: February 28, 2012 )
) Case No. PSH-12-0015
)
____________________________________)
Issued: June 28, 2012
__________
Decision and Order
__________
Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxx hereinafter referred to as Athe
individual@) to hold an access authorization 1/ under the Department of Energy=s (DOE)
regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled, AGeneral Criteria and Procedures
for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.@ As
discussed below, after carefully considering the record before me in light of the relevant
regulations, I have determined that the individual=s access authorization should not be granted.
I. Background
The individual is an applicant for a DOE security clearance. In July 2011, as part of a
background investigation, the Local Security Office (LSO) conducted a Personnel Security
Interview (PSI) of the individual to address his alcohol use. In addition to the PSI, the LSO
requested the individual=s medical records and recommended a psychiatric evaluation of the
individual by a DOE consultant psychiatrist (DOE psychiatrist). The DOE psychiatrist
examined the individual in October 2011 and memorialized his findings in a report (Psychiatric
Report). According to the DOE psychiatrist, the individual suffers from Alcohol Dependence.
1/Access authorization is defined as an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material. 10 C.F.R. ' 710.5(a).
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The DOE psychiatrist further concluded that the individual=s Alcohol Dependence is a mental
illness that causes or may cause a significant defect in his judgment and reliability.
In February 2012, the LSO sent a letter (Notification Letter) advising the individual that it
possessed reliable information that created a substantial doubt regarding his eligibility to hold an
access authorization. In an attachment to the Notification Letter, the LSO explained that the
derogatory information fell within the purview of two potentially disqualifying criteria set forth
in the security regulations at 10 C.F.R. ' 710.8, notably subsections (h) and (j) (hereinafter
referred to as Criteria H and J respectively). 1/
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual=s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the DOE Counsel called one witness, the DOE psychiatrist. The individual presented
the testimony of two witnesses who were friends of the individual. He also testified on his own
behalf. The DOE and the individual submitted a number of written exhibits prior to the hearing.
II. Regulatory Standard
A. Individual=s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where the
government has the burden of proving the defendant guilty beyond a reasonable doubt. Rather,
the standard in this proceeding places the burden on the individual because it is designed to
protect national security interests. This is not an easy burden for the individual to sustain. The
regulatory standard implies that there is a presumption against granting or restoring a security
clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (Aclearly consistent with
the national interest@ standard for granting security clearances indicates Athat security
determinations should err, if they must, on the side of denial@); 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).
The individual must come forward at the hearing with evidence to convince the DOE that
granting his access authorization Awill not endanger the common defense and security and will
be clearly consistent with the national interest.@ 10 C.F.R. ' 710.27(d). The individual is
afforded a full opportunity to present evidence supporting his eligibility for an access
authorization. The Part 710 regulations are drafted so as to permit the introduction of a very
broad range of evidence at personnel security hearings. Even appropriate hearsay evidence may
2/ Criterion H relates to information that a person has A[a]n illness or mental condition of a nature 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). Criterion J relates to information that a person has
A[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).
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be admitted. 10 C.F.R. ' 710.26(h). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
B. Basis for the Hearing Officer=s Decision
In personnel security cases arising under Part 710, it is my role as the Hearing Officer to issue a
Decision that reflects my comprehensive, common-sense judgment, made after consideration of
all the relevant evidence, favorable and unfavorable, as to whether the granting or continuation
of a person=s access authorization will not endanger the common defense and security and is
clearly consistent with the national interest. 10 C.F.R. ' 710.7(a). I am instructed by the
regulations to resolve any doubt as to a person=s access authorization in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As stated above, the LSO cites two criteria as bases for denying the individual=s security
clearance: Criteria H and J. To support Criterion H, the LSO relies on the opinion of the DOE
psychiatrist that the individual suffers from Alcohol Dependence.
As for Criterion J, the LSO cites the DOE psychiatrist=s opinion and the following additional
information: (1) a September 2010 arrest for Public Intoxication and Disorderly Conduct and a
June 2006 arrest for Public Intoxication; (2) the individual=s admission during a July 2011 PSI
that he drinks to intoxication once per month and intends to continue drinking alcohol; (3) the
individual=s admission that from 2001 to the present, he has experienced five or six blackouts per
year due to the his alcohol consumption, with his most recent blackout occurring during his
September 2010 Public Intoxication arrest; (4) the individual=s admission that his tolerance for
alcohol has increased over the years to the point that it takes 12-14 beers plus whiskey cocktails
in order for him to become intoxicated and (6) the individual=s admission that when he does not
consume alcohol he experiences withdrawal symptoms. See DOE Exh. 1.
I find that the information set forth above constitutes derogatory information that raises
questions about the individual=s alcohol use under both Criteria H and J. First, a mental
condition such as Alcohol Dependence can impair a person=s judgment, reliability and
trustworthiness. See Guideline I of the 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).
Second, the excessive consumption of alcohol itself is a security concern because that behavior
can lead to the exercise of questionable judgment and the failure to control impulses, which in
turn can raise questions about a person=s reliability and trustworthiness. See id. at Guideline G.
IV. Findings of Fact
By his own account, the individual has been drinking alcohol since the age of 17. DOE Exh. 6.
During his senior year in high school, he drank to excess about twice a month at parties on
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weekends. Id. In college, the individual=s pattern of drinking alcohol increased slightly and he
would become intoxicated approximately three times a month at parties. Id. He also
experienced blackouts about every two months while in college. Id. After college, the
individual became intoxicated twice a month and developed a tolerance to alcohol, at one time
needing as much as 12-14 beers plus whiskey cocktails to become intoxicated. Id. During his
October 2011 psychiatric evaluation, the individual acknowledged that he has become alcohol
dependent. Id. His last blackout occurred in September 2010 at the time of his second arrest
for Public Intoxication. Id.
V. Analysis
I have thoroughly considered the record in this proceeding, including the submissions tendered
in this case and the testimony of the witnesses presented at the hearing. In resolving the
question of the individual=s eligibility for access authorization, I have been guided by the
applicable factors prescribed in 10 C.F.R. ' 710.7(c). 1/ After due deliberation, I have
determined that the individual=s access authorization should not be granted. I cannot find that
granting the individual=s security clearance will not endanger the common defense and security
and is clearly consistent with the national interest. 10 C.F.R. ' 710.27(a). The specific
findings that I make in support of this decision are discussed below.
A. The Diagnosis of Alcohol Dependence
The DOE psychiatrist explained in detail in the Psychiatric Report and at the hearing how the
individual met the diagnostic criteria set forth in the American Psychiatric Association=s
Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR)
for Alcohol Dependence. DOE Exh. 6, Transcript of Hearing (Tr.) at 63-65.
B. Evidence of Rehabilitation and Reformation from Alcohol Dependence
During the hearing, the individual acknowledged that he had a problem with alcohol, a
conclusion he reached after his psychiatric evaluation with the DOE psychiatrist. Tr. at 34. He
explained that, in the past, he did not feel the Aneed@ to drink, but when he did consume alcohol,
he consumed it in excess. Id. The individual testified that he last consumed alcohol in October
2011, but had began limiting his alcohol intake about a year ago, consuming only two or three
beers during the course of a weekend. Id. He further explained that he primarily drank for
social reasons and stated that his drinking has never created family problems for him. Id. at 37.
However, the individual acknowledged his two alcohol-related arrests, the first occurring in 2006
3/ Those factors include the following: the nature, extent, and seriousness of the conduct, the
circumstances surrounding the conduct, to include knowledgeable participation, the frequency and
recency of the conduct, the age and maturity at the time of the conduct, the voluntariness of his
participation, the absence or presence of rehabilitation or reformation and other pertinent behavioral
changes, the motivation for the conduct, the potential for pressure, coercion, exploitation, or duress, the
likelihood of continuation or recurrence, and other relevant and material factors.
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while he was in college and the second occurring in September 2010 after drinking with a
roommate. Id. at 38-40. He testified that these two arrests were lapses in judgment. Id.
According to the individual, he decided to abstain from alcohol after receiving the DOE
psychiatrist=s report, which opened his eyes to his alcohol problem. Id. at 42. He testified that
since abstaining from alcohol, in October 2011 1/, he has been healthier and more productive.
Id. The individual further testified that he is not currently participating in an alcohol program
such as Alcoholics Anonymous (AA). Id. He attended AA briefly in 2010, but testified that he
did not feel comfortable in the environment. Id. The individual testified that he does not feel
the need for an alcohol program, stating that he has done well at abstaining from alcohol on his
own. He added that he does not frequent bars anymore and stated that the transition to
abstinence has not been difficult for him. Id. at 53. The individual testified that he has a support
system, including family and a close group of friends, who he can call upon if in need. Id. at
55.Finally, the individual testified that he is not interested in drinking socially.
The DOE psychiatrist listened to all the testimony at the hearing before testifying himself. He
noted that the individual has been abstinent for a six-month period, which he considered to be a
good start towards reformation. Id. at 69. However, he testified that until the individual
achieves 12 months of sobriety, the risk of relapse is high. Id. He concluded that the
individual has not yet achieved adequate evidence of reformation. Id.
C. Hearing Officer=s Evaluation of the Evidence
In the administrative process, Hearing Officers accord deference to the expert opinions of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009). 1/ The DOE
psychiatrist convinced me that the individual has made a good start towards rehabilitation, but
needs at least one year of abstinence to be considered adequately reformed. Although the
individual has stated that he has changed his drinking habits and has altered his social life, it is
clear that the individual is only in the early stages of recovery. Moreover, the individual has not
yet demonstrated established a pattern of abstinence. See Adjudicative Guidelines at Guideline
G & 23(b). Based on the foregoing, I find that the individual has not yet demonstrated adequate
evidence of reformation at this time. For this reason, I find that he has not mitigated the
security concerns under Criteria H and J.
D. Conclusion
4/ During the hearing, the individual offered testimony by two witnesses who were friends who have
known the individual for a number of years. Both of his friends testified that the last time they witnessed
the individual consume alcohol was in October 2011.
5/ Decisions issued by 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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In the above analysis, I have found that there was sufficient derogatory information in
the possession of the DOE that raises serious security concerns under Criteria H and J.
After considering all the relevant information, favorable and unfavorable, in a
comprehensive common-sense manner, including weighing all the testimony and other
evidence presented at the hearing, I find that the individual has not brought forth
convincing evidence to mitigate the security concerns associated with Criteria H and J.
I therefore cannot find that granting the individual=s access authorization would not
endanger the common defense and security and would be consistent with the national
interest. Accordingly, I find that the individual=s access authorization should not be
granted. The
parties may seek review of this Decision by an Appeal Panel under the regulations set
forth at 10 C.F.R. ' 710.28.
Kimberly Jenkins-Chapman
Hearing Officer
Office of Hearings and Appeals
Date: June 28, 2012