PSH-12-0065

* 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 29, 2012 )
) Case No.: PSH-12-0065
__________________________________________)
Issued: August 22, 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
regain his suspended Department of Energy (DOE) access authorization.1 For the reasons
detailed below, I find that the Individual’s access authorization should be restored.
I. BACKGROUND
The Individual is a contractor employee at a DOE facility. Exhibit (Ex.) 10 at 3. The Local
Security Office (LSO) discovered that the Individual failed to list a 2004 Driving Under the
Influence (DUI) arrest in a Questionnaire for National Security Positions form completed in
October 2011. Ex. 10 at 10. The Local Security Office (LSO) conducted a personnel security
interview with the Individual in January 2012 (2012 PSI) and, due to concerns arising from the
Individual’s admission of excessive alcohol use in the 2012 PSI, referred him for an examination
by a DOE-contractor psychologist (DOE Psychologist). Ex. 12; Ex. 8 at 1. Because neither the
2012 PSI nor the DOE Psychologist’s examination resolved the security concerns arising from
the Individual’s admission of excessive consumption of beer, the LSO informed the Individual,
in a April 2012 notification letter (Notification Letter), that derogatory information existed that
raised security concerns under 10 C.F.R. § 710.8 (j) (Criterion J) 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 and the OHA Director appointed me as
Hearing Officer. At the hearing, the DOE counsel introduced 13 exhibits into the record (Exs.
1-13) and presented the testimony of the DOE Psychologist. The Individual presented his own
testimony, as well as the testimony of his fiancée (Fiancée). See Transcript of Hearing, Case No.
PSH-12-0065 (hereinafter cited as “Tr”). At the hearing, the Individual submitted two exhibits
(Exs. A-B).
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) (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 Criterion J
1. The Individual’s Alcohol Consumption
The facts of this case are essentially undisputed. Tr. at 32.
In September 1994, the Individual was arrested for Driving Under the Influence (DUI). Ex. 13 at
23-26; Ex. 12 at 11-34. Prior to the arrest, the Individual had consumed four or five beers and
had fallen asleep at the wheel which resulted in his vehicle colliding with another vehicle. Ex. 12
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at 88; Ex. 13 at 24-25. Ten years later, local police arrested the Individual in January 2004 for
DUI. Ex. 11 at 7. Prior to the arrest, the Individual consumed four or five beers.
In the 2012 PSI, the Individual reported that during the period, 1984 through September 1994,
the Individual consumed 20 to 24 beers per month. Ex. 12 at 74. After the arrest, the Individual
stopped consuming alcohol until approximately 2004. Ex. 12 at 35-36. At the time of the 2004
arrest, the Individual was consuming two to four beers nightly and 12 to 18 beers during the
weekend. Ex. 12 at 83-84. The Individual also reported that, at the time of the 2012 PSI, his
alcohol consumption was two to four beers during the workweek and 10 to 18 beers during the
weekend. Ex. 12 at 159.
After her March 2012 examination of the Individual, the DOE Psychologist issued an evaluative
report. Ex. 8. In her report (Report), the DOE Psychologist noted that two of the three
standardized psychological tests to detect possible alcohol disorders (SASSI-32 and the Michigan
Alcohol Screening Test) she administered to the Individual indicated that he had no apparent
problems with alcohol consumption. The remaining test (Alcohol Use Disorders Test) indicated
the possibility that the Individual was engaging in harmful alcohol consumption. Ex. 8 at 7.
Based upon her interview with the Individual and her review of the available records and
psychological testing, the DOE Psychologist found that the Individual had engaged in the
“imprudent” use of alcohol in the past and was currently engaging in “risk drinking” as defined
by the National Institute of Health.3 Ex. 8 at 7. While she found that the Individual did not suffer
from an alcohol disorder or suffer from an illness that could cause a significant defect in
judgment or reliability, she opined that the Individual “has been and continues to be a user of
alcohol habitually to excess without adequate evidence of rehabilitation or reformation.” Ex. 8 at
8. The DOE Psychologist stated that, in order for the Individual to demonstrate adequate
evidence of reformation, the Individual would have to reduce his alcohol consumption to less
than four alcoholic drinks per day and no more than 13 drinks per week.4 Ex. 8 at 8.
2. The Associated Security Concerns
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(j). 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; Personnel Security Hearing, Case
No. TSO-0927 (November 30, 2010). Given the DOE Psychologist’s opinion, as stated in the
Report, that the Individual is a user of alcohol habitually to excess, the LSO had sufficient
grounds to invoke Criterion J.
2 SASSI is an acronym for Substance Abuse Subtle Screening Inventory.
3 The NIH standard for “risk drinking” for males is consumption of over 14 drinks per week. Ex. 8 at 7.
4 In her report, the DOE Psychologist did not specify a minimum period of time that the Individual needed to reduce
his alcohol consumption.
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B. Whether the Individual Has Mitigated the Security Concerns
At the hearing, the Individual testified that he began to consume alcohol in high school.5 Tr. at
12-13. Later, after his 1994 DUI arrest, he stopped consuming alcohol for a period of ten years.
Tr. at 13, 15-16, 23. During this period, the Individual also quit smoking without any treatment
program. Tr. at 13. The Individual went on to testify that his personal problems from his divorce
led to him resume consuming alcohol around 2004. Tr. at 15, 23. After the 2004 DUI arrest, the
Individual began to reduce his alcohol consumption. Tr. at 23. The Individual further reduced his
alcohol consumption after his interview with the DOE Psychologist. Tr. at 30-31. From April
2012 to the date of the hearing, the Individual’s alcohol consumption consisted of three or four
beers per day on each of his three-day weekends. Tr. at 23-24. During his four-day workweek,
the Individual does not consume alcohol. Tr. at 31.
The Individual testified as to how much his position at the DOE facility means to him and the
pride he feels in his work. Tr. at 9-10, 17-18. Prompted by the suspension of his clearance, the
Individual completed an on-line alcohol-awareness course where he learned about the effects of
alcohol and the problems excessive use may cause. Tr. at 26-28, 44; Ex. A (certificate of
completion). Additionally, the Individual obtained an evaluation by a licensed clinical social
worker (LCSW). Ex. B. In a written statement submitted by the Individual, the LCSW stated that
he assessed the Individual with the purpose of determining whether the Individual required any
type of alcohol treatment. Ex. B. The LCSW administered the UNCOPE6 screening assessment
test for determining alcohol addition to the Individual. Ex. B at 1. The results of the test indicated
that the Individual has abused alcohol at times but that he is not alcohol dependent. Ex. B at 1.
Based upon the test results and his interview, the LCSW did not recommend any type of alcohol
treatment program for the Individual. Ex. B at 1.
The Fiancée testified that she starting dating the Individual in 2004 and has known him for
approximately 30 or 40 years. Tr. at 48. She noted that the Individual had a great deal of pride in
working at the DOE facility. Tr. at 50. When the Individual’s clearance was suspended, the
Individual was shocked and humiliated. Tr. at 51. Upon receiving the Notification Letter, the
Individual began to reduce his alcohol usage. Tr. at 51. The Fiancée testified that the Individual’s
current alcohol usage is one or two beers during the working week and have one or two beers a
night during his three-day weekends. Tr. at 48, 52, 58. Occasionally, on hot days during the
haying season at their ranch, the Individual might consume as many as six beers during an entire
day. Tr. at 58. On the Individual’s three-day weekends, the Individual engages in a significant
amount of physical labor. Tr. at 65. Socially, the Individual and his Fiancée rarely go to bars. Tr.
at 70.
The Fiancée also testified that she and the Individual would go to the Individual’s parents’
mountain house where the family engaged in consuming “hard alcohol” drinks. Tr. at 53.
However, in 2004 or 2005, the Fiancée informed the Individual that she did not approve of his
5 The relevant testimony regarding mitigation is summarized in the discussion below.
6 UNCOPE is an acronym which refers to aspects of the six questions which comprise the test.
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behavior when consuming “hard alcohol” and the Individual promptly quit consuming hard
alcoholic drinks. Tr. at 53. The Individual continues to avoid such drinks despite pressure from
his parents to continue to consume such drinks. Tr. at 53. The Fiancée believes that this incident
demonstrates the Individual’s ability to fulfill commitments. Tr. at 53, 56. In this regard, she
noted that she had urged the Individual to quit smoking and, once the Individual made a
commitment to quit, he was able to do so. Tr. at 83. The Fiancée also believes that the
Individual’s attitude towards alcohol consumption has changed due to the recent loss of his
brother and nephew in an automobile accident in which she suspects alcohol may have been a
factor. Tr. at 63-64. Despite the increased stress arising from the accident, the Fiancée noted that
the Individual’s alcohol consumption remained consistent and did not increase. Tr. at 72.
At the hearing, the DOE Psychologist listened to all of the testimony. The DOE Psychologist
expressed her opinion that her finding that the Individual drinks habitually to excess is not a
psychological diagnosis but a short hand way of stating that he is engaging in “risky drinking.”
Tr. at 75. The DOE Psychologist testified that “risky drinking” is a level of consumption that
could lead to problems for the person. Tr. at 75. Further, the DOE Psychologist testified that
according to the National Institute of Health (NIH), risky drinking is any level of alcohol
consumption that exceeds 14 drinks per week. Tr. at 75.
The DOE Psychologist went on to testify that she now believes that the Individual has reduced
his alcohol consumption below the NIH limit since March or early April 2012. Tr. at 76-77, 82.
She was convinced, based upon the Individual’s and the Fiancée’s testimony regarding the
Individual’s successful effort to stop smoking, that the Individual is the type of person who, once
he has made a commitment, will keep the commitment. Tr. at 77. The DOE Psychologist
expressed her belief that the Individual has a long-term intention to reduce his alcohol
consumption and that the loss of his clearance was of a sufficiently large impact to motivate the
Individual to affirmatively reduce his alcohol consumption. Tr. at 78-79.
The DOE Psychologist testified as to her opinion that the Individual did not suffer from any type
of psychological illness or need to be abstinent from alcohol use. Tr. at 75, 77. The DOE
Psychologist believes that the alcohol education class was helpful to the Individual but that the
Individual did not require any type of treatment such as Alcoholics Anonymous or counseling.
Tr. at 77. Further, the DOE Psychologist did not believe that the Individual’s occasional
consumption of as many as six beers during the course of an entire day working on the ranch
raised significant concerns since it appeared that, on those occasions, the Individual still
controlled his consumption to a safe limit. Tr. at 76, 81. Given the importance of his security
clearance to the Individual, the DOE Psychologist opined that the Individual’s risk to return to
problematic drinking is low. Tr. 79-80, 83.
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
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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.
After reviewing the evidence, I find that the Individual has resolved the security concerns raised
by his past alcohol usage. The Individual does not suffer from a psychological condition that
may cause a defect in judgment and reliability. The Individual’s history has shown few alcohol-
related incidents. Notwithstanding this, the Individual has admitted that he has had periods of
excessive alcohol use. The Individual and his Fiancée’s testimony convince me that the
Individual has now changed his alcohol consumption pattern to be within the NIH alcohol
consumption standard referenced by the DOE Psychologist.7 I believe that the shock of possibly
losing his clearance and his job has had a significant impact on the Individual and has motivated
him to make a permanent change in his alcohol consumption pattern. Importantly, the DOE
Psychologist, after listening to the testimony, has concluded that the Individual is now at low risk
to resume problematic alcohol consumption. Consequently, I find that the Individual has
resolved the Criterion J concerns raised by the derogatory information contained in the
Notification Letter.
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 Criterion J of the
Part 710 regulations. However, I find that the Individual has presented sufficient information to
resolve the concerns raised by the Criterion J derogatory information. 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 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: August 22, 2012
7 While the Individual’s and the Fiancée’s testimony differed somewhat concerning when and how many beers the
Individual consumed during the week, both accounts gave similar weekly alcohol consumption totals both of which
were below the NIH standard.