PSH-12-0068

* 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 31, 2012 )
) Case No.: PSH-12-0068
)
__________________________________________)
Issued: September 24, 2012
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Hearing Officer Decision
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Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “the Individual”) to
hold a security clearance under the Department of Energy’s (DOE) regulations set forth at
10 C.F.R. Part 710, Subpart A, entitled, “General 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 conclude
that the Individual’s security clearance should not be restored.
I. BACKGROUND
The administrative review proceeding began with the issuance of a Notification Letter to the
Individual. See 10 C.F.R. § 710.21. The letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. Specifically, the Local Security Office (LSO) stated that the Individual had been
diagnosed by a psychologist with Alcohol-Related Disorder, Not Otherwise Specified (NOS) and
that the Individual had engaged in certain behavior which brought into question his honesty,
reliability, and trustworthiness.1
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt regarding his eligibility for a security clearance.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
1 See 10 C.F.R. § 710.8(h), (j), and (l) (Criterion H, J, and L, respectively).
2
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in
this matter on May 31, 2012.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, three friends/coworkers, three supervisors, his treating counselor (the Counselor), a
DOE consultant Psychiatrist, and a DOE consultant psychologist (the DOE Psychologist). See
Transcript of Hearing, Case No. PSH-12-0068 (hereinafter cited as “Tr.”). The LSO submitted
12 exhibits, marked as Exhibits 1 through 12, while the Individual submitted four exhibits,
marked as Exhibits A through D.
II. FINDINGS OF FACT
The Individual has a history of criminal conduct. On March 8, 2001, a local court issued a
Misdemeanor Warrant to the Individual for his failure to appear in court for a speeding ticket. In
a separate incident, the Individual was charged with Speeding and Not Having a Valid Driver’s
License on May 16, 2002. On November 23, 2002, he was arrested on a bench warrant for
failing to appear in court to answer the charges arising from the May 16, 2002, incident. On
October 30, 2011, the Individual was arrested and charged with aggravated DWI and Careless
Driving. A Breathalyzer test administered to the Individual as result of this arrest indicated that
his blood alcohol level was .22 percent.
On November 17, 2011, the LSO conducted a Personnel Security Interview (PSI) of the
Individual.2 During this interview, the Individual was asked about the circumstances resulting in
his October 30, 2011, DWI arrest.
At the request of the LSO, the DOE Psychologist evaluated the Individual on December 22,
2011. The DOE Psychologist reviewed selected portions of the Individual’s personnel security
file, and interviewed the Individual. After completing his evaluation of the Individual, the DOE
Psychologist issued a report on December 31, 2011, in which he found that the Individual met
the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition-Text Revised (DSM-IV-TR) for “Alcohol-Related Disorder NOS.”3 Exhibit 4 at 6. The
DOE Psychologist further found the Individual’s Alcohol-Related Disorder NOS to be an illness
or condition that causes, or may cause, a significant defect in the Individual’s judgment and
reliability. Id. at 7. The DOE Psychologist opined that the Individual was neither reformed nor
rehabilitated form his Alcohol-Related Disorder NOS, stating in pertinent part:
[The Individual] should remain abstinent for a minimum of one year. He should
participate in an intensive outpatient substance abuse program of at least six
weeks duration. I also recommend that he actively participate in [Alcoholics
Anonymous (AA)] for a minimum period of six-months. By active participation, I
intend that he attend at least four meetings a week, obtain and use a sponsor and
begin diligent study of the 12-steps. To not do these things will indicate that he is
not taking his problem with alcohol seriously.
2 A copy of the transcript of the November 17, 2011, PSI appears in the record as Exhibit 11.
3 A copy of this Report appears in the record as Exhibit 4.
3
Id. at 6.
On March 27, 2012, the LSO conducted a second PSI of the Individual.4 During this March 27,
2012, PSI, the Individual reported that a Human Reliability Program (HRP) Psychologist had
placed him in a mandatory Employee Assistance Program (EAP) counseling program after his
DWI. Exhibit 10 at 50.5
On February 5, 2012, the Individual was involved in a domestic disturbance. He was arrested
and charged with Aggravated Battery, Battery (Household Member), Abuse of a Child-
Intentional (No Death or Great Bodily Harm), Interference with Communications, Negligent Use
of a Deadly Weapon (Unsafe Handling), and Tampering with Evidence (Highest Crime a Third
Fourth or Indeterminate Degree Felony).
A police report dated February 7, 2012, states that the Individual had engaged in a physical fight
with his spouse,6 destroyed property, and pointed a rifle at his spouse. Exhibit 9 at 5. The
Individual’s spouse stated that the Individual, in the presence of their two minor children, then
aimed the rifle at his own chin and fired it. Id. According to his spouse, the bullet grazed his
face. Id. The police report indicates that the arresting officer observed that the Individual “had
black and blue marks to his left check.” Id. The Individual told the officer that he had fallen
down. Id. Both of the Individual’s in-laws, and both of the Individual’s daughters reported
observing the Individual with a rifle during the domestic disturbance incident. The Individual’s
in-laws reported that the Individual had hit them when they tried to intercede. Id. Other than the
five witnesses who stated that they had observed the Individual with a rifle, the police were
unable to locate any evidence indicating that the Individual had discharged a rifle during the
domestic disturbance incident. Id. Several days after the Incident, police were called back to the
Individual’s home by his spouse, who showed the officers several spent casings and a recently
patched bullet hole. Id. at 7.
During the Individual’s March 27, 2012, PSI, the Individual admitted that he had hit his spouse,
cut her lip, and broke her cell phone. Exhibit 10 at 21-22. However, the Individual repeatedly
denied that he had pointed a rifle at his spouse or at himself during the domestic disturbance. Id.
at 22, 28-29, 33, 57. The Individual stated that he had sold all of his rifles before the domestic
disturbance. Id. at 22-23, 29. The Individual also admitted striking his in-laws. Id. at 27. When
the Individual was asked why his daughters would report to the police that they had observed a
rifle, the Individual stated that the police had questioned his daughters on four occasions and that
his daughters had reported observing a rifle during the last two occasions in which they were
4 A transcript of the March 27, 2012, PSI appears in the record as Exhibit 10.
5 At the second PSI, the Individual related that he had attended two Alcoholics Anonymous (AA) meetings a week
since approximately early March 2012, and had been seeing an EAP Counselor once a week since February 24,
2012. Exhibit 10 at 40, 43-44. The Individual reported that he did not yet have a sponsor. Id. at 48. The Individual
stated that a video that his EAP Counselor showed him convinced him that he has a problem with alcohol. Id. at 52.
He stated his last use of alcohol occurred in December 2011. Id. at 71.
6 The Individual and his spouse have subsequently separated.
4
questioned by police. Id. at 29. All charges against him resulting from the domestic disturbance
were dismissed. Id. at 36-37. The Individual denied that he had been using alcohol before or
during the domestic disturbance. Id. at 39.
III. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency
and the Individual, and to render a decision based on that evidence. See 10 C.F.R. § 710.27(a).
The regulations state that “[t]he decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all the relevant information, favorable or
unfavorable, as to whether the granting of 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). In rendering this opinion, I have considered the following factors: the nature, extent,
and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R.
§ § 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
IV. ANALYSIS
A. Criteria H and J
On October 30, 2011, the Individual was arrested for aggravated DWI after a breathalyzer test
indicated that his BAC was .22. Subsequently, a DOE Psychologist diagnosed the Individual
with Alcohol-Related Disorder NOS. This information indicating that the Individual’s use of
alcohol might be problematic raises security concerns about the Individual under Criterion J. In
addition, the Alcohol-Related Disorder NOS diagnosis raises security concerns under Criterion
H. 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. 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) at ¶ 21. In the present
case, an association exists between the Individual’s consumption of alcohol and his subsequent
failure to exercise good judgment and to control his impulses, as evidenced by operation of a
motor vehicle on public roads while in a state of extreme intoxication.
I find that the Individual has not mitigated the security concerns raised by his Alcohol-Related
Disorder NOS. Although neither the HRP Psychologist7 nor the EAP Counselor diagnosed the
7 The HRP Psychologist did not testify at the hearing. However, the Individual submitted a Psychological
Evaluation Report authored by the HRP Psychologist, which appears in the Record as Exhibit B, and a letter
authored by the HRP Psychologist, which appears in the Record as Exhibit D. While the HRP Psychologist did not
diagnose the Individual with a mental disease or disorder, she did require him to complete an alcohol awareness
5
Individual with an alcohol disorder, the Individual himself acknowledges that he has an alcohol
problem and candidly admits that he needs treatment. Tr. at 117-119. Accordingly, the issue
before me is whether the Individual’s self-acknowledged alcohol problem, which has been
characterized by the DOE Psychologist as an Alcohol-Related Disorder NOS, has been
sufficiently mitigated by rehabilitation or reformation.
The Individual is taking action to address his alcohol disorder. He convincingly testified that he
has abstained from consuming alcohol since December 17, 2011. Tr. at 118. The Individual has
obtained counseling, and has begun attending AA.8 The Individual has also obtained an AA
sponsor and is working the AA Twelve-Step Program. Id. at 119. While these are important and
necessary steps for the Individual, I was convinced by the DOE Psychologist’s testimony, as
outlined below, that the Individual needs to both abstain from alcohol use for a longer period of
time, continue his participation in AA and successfully complete alcohol treatment in order to
resolve the doubts raised by his Alcohol-Related Disorder NOS.
The EAP Counselor testified on the Individual’s behalf at the hearing. The EAP Counselor
began seeing the Individual as a result of a Fitness-for-Duty evaluation which, in turn, resulted
from the Individual’s October 30, 2011, DWI. Tr. at 16-17. The EAP Counselor provided the
Individual with Alcohol Awareness training from January 30, 2012, to July 2, 2012. Id. at 17.
He still sees the Individual on a periodic basis, primarily to counsel the Individual about issues
concerning his estranged wife. Id. He noted that he never had any reason to doubt the accuracy
of the information provided to him by the Individual. Id. at 20. The Individual is extremely
cooperative and engaged in his counseling. Id. at 23. When asked about the Domestic
Disturbance, the EAP Counselor opined that, with the Individual, “there is more of a problem-
solving, communication issue rather than overall anger management problem.” Id. at 24. The
Individual has expressed remorse for the Domestic Disturbance. Id. The Individual recognizes
the problems alcohol has caused for him. Id. at 26. The EAP Counselor testified that the
Individual “has made significant progress” and classified his prognosis as “good.” Id. at 24, 33.
The EAP Counselor testified that, although he recommends that the Individual permanently
abstain from using alcohol, he had not diagnosed the Individual with any mental or emotional
diseases or disorders. Id. at 50-51, 53.
At the hearing, the DOE Psychologist observed the testimony of each of the other witnesses
before he testified. The DOE Psychologist testified that he was concerned that the Individual’s
alcohol consumption was more extensive than he admitted. Tr. at 147-150. The DOE
Psychologist noted that the Individual’s blood alcohol level at the time of his arrest was .22, and
that he had an elevated Gamma GT liver function level, which most often results from heavy
alcohol consumption over time. Id. Noting that he had originally recommended that the
Individual abstain from alcohol use for a year, the DOE Psychologist opined that the Individual
needed to abstain from alcohol use for an additional six to eight month period, along with
attending AA and receiving alcohol treatment, in order to establish reformation or rehabilitation.
program (conducted by the EAP Counselor). Exhibit D at 2. In addition, the HRP Psychologist required the
Individual to participate in counseling for his “alcohol use and anger management.” Exhibit B at 6.
8 During his March 27, 2012, PSI, the Individual stated that he had begun attending AA meetings in approximately
early March 2012. Exhibit 10 at 43-44.
6
Id. at 153. Accordingly, the DOE Psychologist testified that the Individual is neither reformed
nor rehabilitated from his Alcohol-Related Disorder NOS. Id. at 154.
Based upon the Psychologist’s compelling testimony, I find that the Individual has not
sufficiently mitigated the security concerns raised under either Criteria H and J.
C. Criterion L
The Individual’s four arrests constitute criminal conduct which raises security concerns under
Criterion L. “Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual's
reliability, trustworthiness and ability to protect classified information.” Adjudicative Guidelines
at ¶ 15. “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.” Id. at ¶ 30.
In the present case, the criminal conduct and behavior evidencing poor judgment, unreliability
and dishonesty cited in the Notification Letter occurred as recently as February 5, 2012. Not
enough time has passed since his last criminal activity to consider these security concerns
resolved by the passage of time. Nor has the Individual met any of the mitigation criteria set
forth in the Adjudicative Guidelines at ¶ 32. Accordingly, I find that the security concerns raised
under Criterion L by the Individual’s four arrests remain unresolved.
V. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria H, J, and L. I
find that unmitigated security concerns remain under each of these criteria. Accordingly, the
Individual has not demonstrated that restoring his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, the
Individual's security clearance should not be restored at this time. The Individual may seek
review of this Decision by an Appeal Panel under the procedures set forth at 10 C.F.R. § 710.28.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: September 24, 2012