PSH-12-0047

* 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: May 2, 2012 )
) Case No.: PSH-12-0047
_________________________________________ )
Issued: August 24, 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 should be
granted DOE access authorization. For the reasons detailed below, I find that the DOE should
grant the Individual access authorization.
I. BACKGROUND
The Individual is a 32-year-old employee of a DOE contractor and is an applicant for DOE
access authorization. DOE Ex. 3. During the application process, the Individual completed a
Questionnaire for National Security Positions (QNSP) in September 2011, and participated in a
November 2011 Personnel Security Interview (PSI). DOE Exs. 7, 8. After the PSI, the local
security office (LSO) referred the Individual to a DOE consultant-psychiatrist (“the DOE
psychiatrist”) for an evaluation. The DOE psychiatrist evaluated the Individual in January 2012
and issued a report. DOE Ex. 6. After reviewing the Individual’s personnel security file, the
LSO informed the Individual in a March 2012 Notification Letter that there existed derogatory
information that raised security concerns under 10 C.F.R. §§ 710.8 (j) and (l) (Criteria J and L,
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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respectively). DOE 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. 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 nine exhibits into the record (DOE Exs. 1-9) and presented the
testimony of one witness, the DOE psychiatrist. The Individual, represented by Counsel,
presented his own testimony, as well as the testimony of three witnesses: his wife, his Alcoholics
Anonymous (AA) sponsor, and his supervisor. See Transcript of Hearing, Case No. PSH-11-
0047 (hereinafter cited as “Tr.”).
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
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 J and L
1. The Individual’s Alcohol Use
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The Individual began drinking alcohol at age 17 or 18. DOE Ex. 6 at 5. During his early to mid-
20s, the Individual drank several times per week, and he drank to intoxication one to two times
per week. Id. at 4. In March 2005, the Individual was arrested for Driving Under the Influence
of Alcohol (DUI), with a breath alcohol content at the time of his arrest of 0.106. Id.; see also
DOE Ex. 9 at 78. As a result of his DUI arrest, the Individual was placed on probation for a
period of two years. Id. Among the various terms of his probation was that the Individual not
consume any alcohol, a condition with which the Individual did not comply. DOE Ex. 6 at 4.
From his mid-20s to his early 30s, the Individual’s alcohol consumption decreased slightly, both
in frequency and volume. Id. at 5. As of early 2012, the Individual consumed alcohol one to
two times per week, and drank to intoxication approximately twice per month. Id. at 5.
As noted above, the Individual was evaluated by the DOE psychiatrist. Following the
evaluation, the DOE psychiatrist determined that the Individual was a user of alcohol habitually
to excess, but did not currently qualify for a diagnosis of Alcohol Abuse because he had not had
any “negative outcome from his drinking” since his 2005 DUI arrest. DOE Ex. 6 at 9. The DOE
psychiatrist noted as a positive factor that the Individual had not increased his alcohol
consumption to his “pre-DUI” levels, but he had also not recognized that he was at risk for
alcoholism due to his family history and past excessive consumption. Id. The DOE psychiatrist
determined that in order to demonstrate adequate evidence of rehabilitation and reformation, the
Individual could either establish that he has reduced his alcohol intake to “minimal” for at least
two years, defining “minimal” intake as no more than one drink per day, and no more than 12
drinks per month. Alternatively, the Individual could attend AA meetings for one year, or
participate in an alcohol abuse treatment program for six months, and establish a minimum of
two years of abstinence from alcohol. Id. at 10. Finally, the DOE psychiatrist opined that
although the Individual did not yet demonstrate evidence of rehabilitation or reformation, several
factors in his life supported his ability to do so, including his wife’s support, his high regard for
his job and unwillingness to jeopardize his position with the DOE contractor, and his high level
of maturity and insight, particularly now that he was aware of his risk factors. Id.
2. The Individual’s Non-Alcohol Related Arrest
The Individual began smoking marijuana at age 16, and used the substance frequently. DOE Ex.
6 at 3. In February 2001, the Individual was arrested for Possession of Marijuana and Possession
of Paraphernalia, and was placed on probation for six months. Id. The Individual reduced his
marijuana use in 2005 because he did not like how it made him feel, and he stopped using the
substance altogether in March 2010. Id. at 4.
3. The Associated Security Concerns
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.
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TSO-0678 (2008).2 In light of the DOE psychiatrist’s determination that the Individual was a
user of alcohol habitually to excess, the LSO properly invoked Criterion J.
Criterion L concerns circumstances tending to show that the 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). It is well-established that criminal
conduct raises doubts as to an individual’s honesty, reliability and trustworthiness, and raises
security concerns under Criterion L. See Adjudicative Guidelines, Guideline J, ¶ 30 (“Criminal
activity creates doubt about a person’s judgment, reliability, and trustworthiness. By its very
nature, it calls into question a person’s ability or willingness to comply with laws, rules and
regulations.”); see also Personnel Security Hearing, Case No. TSO-0507 (2007). Given the
Individual’s past arrests, the LSO had sufficient grounds to invoke Criterion L.
B. Whether the Individual Has Mitigated the Security Concerns
1. Criterion J – Alcohol Use
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. He
stated that he generally consumed alcohol on weekends, and that on those occasions he typically
continued to drink until he felt “buzzed” or intoxicated. Tr. at 16. The Individual acknowledged
that he continued to drink after his 2005 DUI, stating that he was immature about drinking and
that alcohol was part of his lifestyle at the time. Tr. at 17-18. However, the Individual’s
evaluation with the DOE psychiatrist made him think about the role alcohol played in his life,
particularly given his positive family history for alcohol problems. Tr. at 12-13.
The Individual has been abstinent from alcohol since January 2012, six months as of the hearing.
He consumed his last drink three days before meeting with the DOE psychiatrist. Tr. at 28. He
does not have any alcohol in his home, and alcohol is no longer part of his social life. Tr. at 40,
45-46. The Individual stated that he has a group of close friends who are all aware that he does
not drink. Tr. at 46. He stated that his abstinence from alcohol has been a “very positive thing”
and that since he stopped drinking his already-stable relationship with his wife has strengthened,
2 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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he is more spiritual than in the past, and his physical health has improved. Tr. at 40-41, 47, 53-
54. In short, he is “happier now.” Tr. at 55.
In addition to becoming abstinent from alcohol, the Individual decided to begin attending AA
meetings shortly after his evaluation with the DOE psychiatrist. He went to his first meeting in
early February 2012, three days after the evaluation. Tr. at 13. The Individual stated that,
initially, he was not very engaged in the program. During that time he was angry and still did
not believe that he had a problem with alcohol. Tr. at 20. After speaking with a friend who had
gone through a similar experience, the Individual came to realize that his anger stemmed from
“being scared.” Id. Participating in AA helped the Individual learn that he did have a problem
with alcohol because, on the occasions he did drink, he could not control how much alcohol he
consumed. Tr. at 19. The Individual now actively works with an AA sponsor and is working the
AA program’s 12 steps. Tr. at 35-36. He also enjoys hearing from the other members of his AA
group, as many of them have achieved long periods of abstinence. Tr. at 31. He attends AA
meetings two to three times per week, and is an active participant. Tr. at 56
Through his participation in AA, the Individual has learned that he cannot drink alcohol in
moderation and, therefore, he intends to remain abstinent from alcohol in the future. Tr. at 41,
53. He has a strong support system to help him maintain that goal. Tr. at 48. For example, the
Individual’s family and friends are aware of his participation in AA and are supportive of his
efforts. Tr. at 50. His wife has attended an open AA meeting with him and has met his AA
sponsor. Tr. at 30. The Individual is also comfortable relying on his sponsor and other AA
members is he is under stress or is otherwise faced with situations that might have led him to
drink in the past. Tr. at 50. The Individual enjoys AA and plans to continue his participation in
the program indefinitely. Tr. at 51.
The Individual’s testimony regarding his abstinence and his participation in AA was
corroborated by the testimony of his AA sponsor and his wife. Tr. at 69-70, 91, 94-96. The
Individual’s sponsor, who has been in AA for many years, testified that the Individual is open
and honest when he participates in their AA meetings. Tr. at 61. The Individual’s sponsor is
helping the Individual work through the program’s 12 steps, and he speaks with the Individual
several times per week. Tr. at 63. The Individual’s sponsor noted that the Individual is proud of
his abstinence and he believes that the Individual intends to remain abstinent and continue in AA
in the future. Tr. at 68, 75. The Individual’s wife echoed the sentiments of the Individual’s
sponsor. She stated that participating in AA has been “very uplifting” for the Individual. Tr. at
96. The Individual’s wife stated that AA is “a part of [the Individual’s] journey,” and he intends
to continue participating in the program. Tr. at 106-07. She also stated that the Individual does
not have difficulty in remaining abstinent and their social activities no longer include alcohol.
Tr. at 100-02, 109. The Individual’s wife is confident that the Individual will maintain his
abstinence in the future. Tr. at 114. She reiterated that the Individual has a strong support
system made up of family and friends to help him maintain his abstinence. Tr. at 112-13.
After listening to the hearing testimony, the DOE psychiatrist did not change his initial opinion
that the Individual had been a user of alcohol habitually to excess. Tr. at 116. As to the
Individual’s prognosis, the DOE psychiatrist cited several positive factors including the
Individual’s six months of abstinence, his participation in AA and work with his AA sponsor,
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and his strong support system. Tr. at 117. The DOE psychiatrist was particularly impressed
with the Individual’s insight into his problem with alcohol and his ownership of responsibility
for his past behavior. Tr. at 117-18. He further noted that the Individual could have chosen to
attempt to reduce his alcohol intake and drink in moderation – one of the possible methods of
establishing rehabilitation and reformation that the DOE-psychiatrist suggested in his evaluation
report – but the Individual did not do so. Tr. at 118. He found that the Individual’s choice to
pursue abstinence was “striking,” and he noted that the Individual appeared to have an “internal
motivation” to remain abstinent that went beyond his concerns regarding the effect his alcohol
consumption could have on his employment. Id. Given these facts, the DOE psychiatrist opined
that the Individual was likely to continue to remain abstinent from alcohol. Tr. at 122.
Therefore, he determined that the Individual’s risk of relapse was “low.” Tr. at 119.
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 has developed significant insight into the problems caused by his past use of alcohol.
He has been abstinent from alcohol for six months as of the date of the hearing and intends to
remain abstinent indefinitely. He no longer engages in social activities involving alcohol, and
his family and friends are aware and supportive of his sobriety. In addition, the Individual has
fully engaged in the AA program and has made considerable progress since he began attending
meetings in February 2012. He routinely attends meetings, regularly speaks with his sponsor,
and is actively working the program’s 12 steps. Both the Individual’s AA sponsor, who has
many years of experience in the AA program, and the DOE psychiatrist believe that a relapse is
unlikely. Given these factors, I find that the Individual no longer consumes alcohol, and has
demonstrated adequate evidence of rehabilitation and reformation. Accordingly, I conclude,
consistent with OHA precedent in alcohol abuse matters, that the Individual has mitigated the
Criterion J concerns cited in the Notification Letter. See, e.g., Personnel Security Hearing, Case
No., TSO-0853 (2010) (individual who engaged in treatment and five and one-half 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, and strong support system); Personnel Security
Hearing, Case No. TSO-0064 (2003) (individual who established five months of abstinence,
developed exceptional insight into alcohol problem, and actively participated in AA
demonstrated adequate evidence of rehabilitation and reformation); 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).
2. Criterion L – Past Arrests
As noted above, it well-settled that criminal conduct, by its very nature, raises security concerns.
See 10 C.F.R. § 710.8(l); Adjudicative Guidelines, Guideline J, ¶ 30. There are a number of
factors which may serve to mitigate such concerns. Among those factors are that “so much time
has elapsed since the criminal behavior happened, or it happened under such unusual
circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability,
trustworthiness, or good judgment” and that “there is evidence of successful rehabilitation;
including but not limited to the passage of time without recurrence of criminal activity … .”
Adjudicative Guidelines, Guideline J, ¶¶ 32(a), 32(d); see also 10 C.F.R. § 710.7(c).
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In this case, I find that the Individual has mitigated the security concerns raised by his 2001
arrest for Possession of Marijuana and Possession of Paraphernalia, and his 2005 DUI arrest. A
substantial period of time has elapsed since the Individual’s arrests, 11 years since the marijuana-
related arrest and seven years since the DUI arrest. Moreover, the two arrests resulted from
behaviors that the Individual has since discontinued. Specifically, the Individual stopped
smoking marijuana in 2010 and, as established above, has been abstinent from alcohol since
January 2012. In addition, the Individual attributed the behavior to his immaturity, and his wife
stated that he has learned from his mistakes. Tr. at 17-18, 112. Based on my own observations
at the hearing, it is clear that the Individual has matured greatly in recent years and developed
insight into his past behavior. All of these factors lead me to conclude that the Individual’s past
criminal behavior is unlikely to recur in the future, and does not cast doubt on his reliability,
trustworthiness, or good judgment. See Personnel Security Hearing, OHA Case No. TSO-1053
(2011) (security concerns raised by individual’s past arrests mitigated by passage of time since
criminal conduct, as well as individual’s increased maturity and pattern of responsible behavior).
IV. CONCLUSION
Upon considering the entire record in this case, I find that there was sufficient derogatory
information in the possession of the DOE that raised serious security concerns regarding the
Individual’s eligibility for a security clearance under Criteria J and L of the Part 710 regulations.
After considering all the relevant information, favorable and unfavorable, in a comprehensive
and common-sense manner, including weighing all the testimony and other evidence presented at
the hearing, I find that the Individual has presented sufficient information to fully resolve the
Criteria J and L concerns. Therefore, I conclude that granting the Individual 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 grant the
Individual 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.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: August 24, 2012