PSH-12-0029

* 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-12-0029
)
_________________________________________ )
Issued: May 3, 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 in a position requiring him to hold a DOE
access authorization. DOE Ex. 3. In December 2010, while on disability leave due to a medical
condition, the Individual voluntarily entered an inpatient substance abuse facility to receive
treatment for alcohol dependence. DOE Ex. 8. The Individual reported his treatment to his
management, who in turn informed the Local Security Office (LSO). DOE Ex. 10 at 8-9. This
potentially derogatory information prompted a March 2011 Personnel Security Interview (PSI).
DOE Ex. 10. 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
August 2011 and issued a report. DOE Exs. 4, 5. After reviewing the Individual’s personnel
security file, the LSO informed the Individual in an October 2011 Notification Letter that there
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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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, October 14, 2011. 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. DOE Ex. 2. 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 ten exhibits into the record (DOE Exs. 1-10) and presented the
testimony of one witness, the DOE psychiatrist. The Individual presented his own testimony, as
well as the testimony of six witnesses: his girlfriend, his father, his mother, his stepfather, his
brother, and his supervisor. See Transcript of Hearing, Case No. PSH-11-0031 (hereinafter cited
as “Tr.”). 2
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
2 After the hearing in this matter, but prior to the issuance of this Decision, the LSO issued a Security Termination
Statement regarding the Individual, which indicated that the Individual’s employment with the DOE contractor had
ended and, therefore, he no longer required DOE access authorization. Based on that Security Termination
Statement, I dismissed the Individual’s administrative review proceeding (designated as OHA case number PSH-11-
0031), terminating the administrative review process without a final decision regarding the Individual’s eligibility
for access authorization, pursuant to 10 C.F.R. § 710.33. In a subsequent letter, the LSO informed OHA that the
Security Termination Statement pertaining to the Individual resulted from an administrative error. The LSO
requested that the Individual’s administrative review proceeding be reinstated and that a Hearing Officer’s Decision
be issued regarding his eligibility for DOE access authorization. Accordingly, OHA reinstated the Individual’s
administrative review proceeding, and designated the case as OHA case number PSH-12-0029. The record of PSH-
12-0029 is comprised of the entire record of PSH-11-0031, including all submissions filed by the parties and the
transcript of the hearing.
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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 socially while in high school. DOE Ex. 4 at 10. During
college, the Individual initially consumed alcohol infrequently, and generally not to intoxication.
Id. The Individual got married while in college. Id. During the first few years of his marriage,
the Individual consumed alcohol about once per week, usually drinking a beer with dinner at
home. Id. The Individual’s alcohol consumption slowly increased over time to ten to twelve
drinks per week. Id. Following his separation from his wife in December 2009, the Individual’s
drinking increased significantly. Id. Until approximately March 2010, the Individual drank
three to six beers at home every evening. Id. In March 2010, the Individual moved to a new
home located across the street from a bar. Id. From March 2010 to October 2010, the Individual
frequented that bar five to seven nights per week, drinking one beer each night. Id. The
Individual’s preexisting medical condition worsened, and the Individual left work for a period of
time on disability leave. Id. at 10-11. The Individual’s doctors warned him against consuming
alcohol because of his condition. Id. at 11. Nevertheless, because he had nothing to do while
home on disability leave, the Individual began drinking again. Id. At that point, the Individual’s
daily alcohol consumption increased substantially. He generally began drinking around noon
and continued to drink until bedtime. Id.
In November 2010, the Individual recognized that he needed to stop drinking. He realized that
his alcohol consumption was severely impacting his health and his personal relationships. Id.
The Individual stopped drinking at the end of November 2010 and, after consulting with his
counselor3 and his family, agreed to enter an inpatient substance abuse treatment program. Id.;
see also DOE Ex. 8 (treatment program records). The Individual remained at the treatment
facility for 29 days, during which he attended group counseling sessions and daily Alcoholics
Anonymous (AA) meetings. Id.
As noted above, the Individual was evaluated by the DOE psychiatrist in August 2011.
Following the evaluation, the DOE psychiatrist diagnosed the Individual with Alcohol
Dependence, with Physiological Dependence, in Early Partial Remission. DOE Ex. 4 at 16.
Despite the Individual’s participation in inpatient substance abuse treatment, and seven months
of purported abstinence from alcohol, the DOE psychiatrist noted that the Individual’s insight
regarding his alcohol problem was “quite limited.” Id. She further opined that the Individual did
not demonstrate adequate evidence of rehabilitation and reformation. Id. The DOE psychiatrist
concluded that in order to demonstrate adequate evidence of rehabilitation and reformation, the
3 The Individual had been seeing a counselor for issues unrelated to his alcohol use. Tr. at 119.
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Individual should remain completely abstinent from alcohol for a minimum of one year, if he
also attends AA meetings twice per week and works with an AA sponsor, or a minimum or two
years if he chooses not to participate in AA. Id. at 16-17. In an addendum to her report, the
DOE psychiatrist noted that the Individual tested positive for alcohol on a urinalysis test
administered to him on the day of his interview with her, despite his contention that he consumed
his last alcoholic drink in February 2011. DOE Ex. 5.
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).4 In light of the DOE psychiatrist’s determination that the
Individual met the criteria for Alcohol Dependence, a condition which causes or may cause a
significant defect in her judgment and reliability, 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 his past alcohol consumption and the
effects that alcohol had on his life. The Individual acknowledged that he began drinking heavily
following his divorce, despite knowing that doing so negatively impacted his health. Tr. at 115.
According to the Individual, he very quickly became a “barely functional alcoholic.” Id. He
stated that he felt “physically terrible” all the time, but it did not occur to him to stop drinking.
Tr. at 118-19. The Individual ultimately decided to seek treatment for his alcohol problem after
being encouraged to do so by his counselor and his parents. Tr. at 119. The Individual did not
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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find the treatment program that he attended to be particularly useful. Tr. at 113-14. He believed
the program was designed for much younger individuals. Tr. at 114. He did, however, find that
the participating in the program helped him recognize that he had a problem with alcohol that he
needed to address. Id.
After returning home from the treatment program, the Individual attended AA meetings regularly
for approximately one month. Tr. at 124. After the first month, his attendance became more
sporadic. The Individual did not believe he needed to attend AA meetings regularly; rather, he
chose to attend meetings when he felt he was in danger of drinking again. Tr. at 124-25. For
example, the Individual had more free time after the suspension of his security clearance and
found that he was thinking about drinking again. Tr. at 125-26. He recognized that those
thoughts were “destructive” and began attending AA meetings regularly to help him maintain his
sobriety. Tr. at 126. The Individual has also identified an AA member that he intends to ask to
be his sponsor. Tr. at 125.
The Individual had his last knowing consumption of alcohol in February 2011, at a birthday
party thrown for him by his new girlfriend and her family. Tr. at 121. He was given a bottle of
liquor as a gift, and everyone drank a shot of the liquor. Tr. at 123. He knew at the time that he
should not have consumed the alcohol, and he immediately regretted drinking it. Id. He has not
knowingly had any alcohol since that time. Id. Regarding his positive urinalysis test following
his interview with the DOE psychiatrist, the Individual adamantly maintained that he did not
knowingly consume alcohol in August 2011, but realized after the positive urinalysis that he had,
in fact, consumed alcohol. Tr. at 128-29, 150-52. The Individual’s girlfriend corroborated his
testimony and, as discussed below, the DOE psychiatrist agreed that the unknowing consumption
reported by the Individual, coupled with his medical condition, explained the positive test. Tr. at
52, 168-72.
The Individual recognizes that he cannot drink in moderation and he intends to remain abstinent
in the future. Tr. at 135, 143. In order to ensure that he is accountable for his actions, the
Individual has an agreement with his doctor that he be subject to alcohol screenings prior to each
appointment with her every few months.5 Tr. at 128. The Individual also intends to continue
attending AA meetings for the foreseeable future. Tr. at 130-31, 157-58. The Individual also
has a strong support system in place to help him maintain his abstinence. For example, the
Individual is in a stable relationship with his girlfriend and is planning to get married in the near
future. Tr. at 143. His girlfriend has attended AA meetings with him in order to support his
abstinence. Tr. at 42, 126. She also no longer drinks alcohol, and she and the Individual do not
keep any alcohol in their home. Tr. at 40, 51, 159-60. The Individual’s father has been in AA
and maintained abstinence for over 25 years and is a source of support and advice for the
Individual. Tr. at 97, 141. The Individual’s mother and stepfather have also taken an active
interest in the Individual’s recovery from alcohol dependence. Tr. at 62-71, 83-91. They moved
from their home in a different state to the Individual’s state for approximately six months to
provide support and assistance during his recovery. Tr. at 62. The Individual’s stepfather
5 The Individual tested positive for alcohol on one of the screenings, which took place the day after he was
administered a urinalysis test in connection with his evaluation with the DOE Psychiatrist on which he tested
positive for alcohol. The other screenings were negative for alcohol. Tr. at 161; see also DOE Ex. 7.
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accompanied the Individual to the treatment facility when he enrolled in the substance abuse
program. Tr. at 62, 138.
The Individual’s testimony regarding his abstinence, his treatment, and his AA attendance was
corroborated by his girlfriend, his brother, and his parents. Tr. at 44-47 The Individual’s
girlfriend stated that in February 2011, she was unaware that the Individual was in recovery from
an alcohol problem and the drinks “may have been pushed on him.” Tr. at 38. However, since
she became aware that he had an alcohol problem and that alcohol negatively impacts his
medical condition, she is very supportive of his abstinence. Tr. at 40. She usually attends AA
meetings with him several times per week. Tr. at 44. The Individual’s girlfriend has observed
the Individual during his AA meetings. She stated that it is “a really good crowd” and the
Individual actively participates in the meetings. Tr. at 44. The Individual’s brother indicated
that he sees the Individual fairly regularly and he has not seen the Individual drink since seeking
treatment for his alcohol use. Tr. at 21. He noted that the Individual’s health and mental state
had greatly improved since the Individual stopped drinking. Tr. at 21-22. The Individual has
made clear to his brother that he cannot drink in the future because of his medical condition, and
the Individual’s brother believes the Individual intends to remain abstinent in the future. Tr. at
22-23. The Individual’s parents stated that the Individual had a serious alcohol problem,
stemming primarily from his divorce, but he sought treatment and no longer drinks. Tr. at 60,
68, 84, 90, 96, 108. They noted that the Individual is doing much better, both mentally and
physically. Tr. at 76, 90, 101. They also confirmed that he is committed to remaining abstinent
in the future and has a strong support system to help him attain that goal. Tr. at 69-70, 90, 104-
05.
After listening to the hearing testimony, the DOE psychiatrist did not change her diagnosis of
alcohol dependence. Tr. at 163-64. As to the Individual’s prognosis, the DOE psychiatrist cited
several positive factors. As an initial matter, the DOE psychiatrist discussed the Individual’s
positive result on the urinalysis test he was administered following his evaluation with her. Tr. at
168-72. According to the DOE psychiatrist, when she informed the Individual that he tested
positive for alcohol, he was shocked and “very emotional,” and she believed his reaction was
genuine. Tr. at 168-69. A passing statement by the Individual at the hearing – that he ate an
apple and drank cranberry juice each morning for breakfast – confirmed the DOE psychiatrist’s
belief that the Individual did not knowingly ingest alcohol in August 2011. Tr. at 169-70; see
also Tr. at 129 (The Individual believed it “more than likely [that he] was drinking cranberry and
vodka every morning with [his] morning apple.”). The DOE psychiatrist explained that when
individuals ingest large amounts of sugar, the sugar gets metabolized and converted into some
form of alcohol. Tr. at 170. She stated that the fact that the Individual already had compromised
liver function due to his medical condition, combined with the daily intake of the sugar contained
in an apple and fruit juice, together with the small amount of alcohol that was mixed in with the
juice without the Individual’s knowledge, was likely enough to cause the positive result on the
alcohol screening. Tr. at 170-71. Therefore, at the hearing, the DOE psychiatrist was convinced
that the Individual’s last knowing consumption of an alcoholic drink occurred in February 2011,
approximately one year before the hearing. Tr. at 172.
In addition to the Individual’s one year of abstinence, the DOE psychiatrist cited as a positive
factor the Individual’s growing insight into his alcohol dependence. Tr. at 173. She stated that
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the Individual had indicated during their interview that he would not hesitate to go to AA
meetings on a regular basis if he felt like he was in danger of drinking again and, based on the
testimony, he did resume his participation in AA when he needed the additional support. Id.; Tr.
at 178-79. The DOE psychiatrist was also impressed by the Individual’s support system. Tr. at
172. She noted that the Individual’s girlfriend and family “were not enablers,” and were “well
informed about the disease of alcoholism [and] the risk of relapse,” and, therefore, were a strong
support system for the Individual. Id. Finally, the DOE psychiatrist noted that the stressors that
contributed to the Individual’s excessive use of alcohol – his divorce and his medical issues – are
mostly resolved. Id. Based on these factors, the DOE psychiatrist concluded that the Individual
has made significant progress in the year since his last drink. Tr. at 174. Therefore, she opined
that the Individual was rehabilitated and reformed from alcohol dependence, and she concluded
that his risk of relapse was “low.” Id.
After considering the hearing testimony and evaluating the record as a whole, I find that the
Individual has mitigated the security concerns raised by his consumption of alcohol. The
Individual admitted himself to an inpatient treatment program to address his problem with
alcohol. He has developed extraordinary insight into the problems caused by his past use of
alcohol, particularly in terms of the effects of alcohol on his health. He has been abstinent from
alcohol for one year as of the date of the hearing and intends to remain abstinent indefinitely. In
addition, the Individual resumed regular participation in AA program and has the support of his
girlfriend who regularly attends AA meetings with him. He also has a very involved and well-
educated support system in his girlfriend and family. Finally, the DOE psychiatrist believes that
the Individual is unlikely to relapse in the future. Given these factors, I find that the Individual
no longer consumes alcohol, and has demonstrated adequate evidence of rehabilitation and
reformation. Accordingly, I conclude 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-
0963 (2011) (individual who engaged in treatment and eleven 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, 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: May 3, 2012