PSH-12-0088

* 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: July 16, 2012 ) Case No.: PSH-12-0088
)
___________________________________ )
Issued: November 15, 2012
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Decision and Order
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Janet R. H. Fishman, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXXX (hereinafter referred to as the
Individual) for access authorization under the regulations set forth at 10 C.F.R. Part 710, entitled
“Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special
Nuclear Material.”1/ After carefully considering the record before me in light of the relevant
regulations, I have determined that the Individual’s access authorization should be restored.
I. Background
The Individual has held a Department of Energy (hereinafter referred to as the DOE) security
clearance for 11 months, as he is employed by a DOE contractor in a position that requires
access authorization. Based upon the receipt of derogatory information regarding the
Individual’s alcohol consumption, the Local Security Office (hereinafter referred to as the LSO)
called the Individual in for a Personnel Security Interview (hereinafter referred to as the PSI).
DOE Ex. 15. After the PSI, the LSO sent the Individual to a DOE consulting psychologist
(hereinafter referred to as DOE psychologist) for an evaluation. Following its receipt of the
DOE psychologist’s report, the LSO informed the Individual that derogatory information created
a substantial doubt concerning his eligibility for access authorization. Notification Letter dated
June 15, 2012; DOE Ex. 1. In an attachment to the Notification Letter, the LSO explained that
the derogatory information fell within the purview of three potentially disqualifying criteria set
1/ An access authorization is an administrative determination that an individual is eligible for access to
classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will also be referred
to in this Decision as a security clearance.
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forth in the security regulations at 10 C.F.R. § 710.8, subsections (h), (j), and (l) (hereinafter
referred to as Criteria H, J, and L).2/ DOE Ex. 1 at 1-2.
The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt concerning his eligibility for access
authorization. The Individual requested a hearing on this matter, and I was appointed the
Hearing Officer. I conducted a hearing within the required regulatory time frame. At the
hearing, the DOE introduced 17 exhibits into the record of this proceeding and presented the
testimony of a DOE psychologist. The Individual presented the testimony of five witnesses, in
addition to testifying himself.
II. Regulatory Standards
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) (“clearly consistent with
the national interest” standard for granting security clearances indicates “that security
determinations should err, if they must, on the side of denials”); 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 restoring his access authorization “will 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 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.
2/ Criterion H concerns information that a person has “[a]n illness or mental condition of a nature which,
in the opinion of a psychiatrist 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 information that a person
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). Criterion L concerns information that a person has “[e]ngaged in any unusual conduct or is
subject to any circumstances which tend 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.
Such conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial
irresponsibility, … or a violation of any commitment or promise upon which DOE previously relied to
favorably resolve an issue of access authorization eligibility.” 10 C.F.R. § 710.8 (l).
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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. Such a decision must consider whether
granting or restoring 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 eligibility in favor of
the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cites three criteria as the basis for denying the Individual’s security
clearance, Criteria H, J, and L. To support the Criteria H and J allegations, the LSO lists the
DOE psychologist’s diagnosis that the Individual meets the criteria set forth in the Diagnostic
Statistical Manual of the American Psychiatric Association IVth Edition TR (DSM-IV-TR) for
Alcohol-Related Disorder, Not Otherwise Specified (hereinafter referred to as NOS), and five
alcohol related incidents in his past, including:
1. In March 2012, he failed a breath alcohol test (hereinafter referred to as BAT) on
reporting for work.
2. In November 2009, he was charged with Open Container.
3. In February 2009, he was arrested and charged with Driving While Intoxicated (DWI)
and Open Container.
4. In June 2000, he was arrested and charged with Public Intoxication.
5. In April 1999, he was arrested and charged with Driving Under the Influence (DUI).
DOE Ex. 1 at 1-2. 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 Guideline G 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); Personnel Security Hearing, Case No. TSO-0927 (November 30,
2010).3/
To support the Criterion L allegations, the LSO lists the Individual’s four criminal charges
including the November 2009 Open Container, February 2009 DWI, June 2000 Public
Intoxication, and April 1999 DUI. DOE Ex. 1 at 2. Under the Adjudicative Guidelines, any
“[a]llegation or admission of criminal conduct, regardless of whether the person was formally
3/ Decisions issued by the Office of Hearings and Appeals (OHA) after November 19, 1996, 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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charged, formally prosecuted or convicted” can raise questions about an individual's reliability,
trustworthiness, and ability to protect classified information. Adjudicative Guidelines ¶ 31(c).
Accordingly, based on the derogatory information listed above, I find that the LSO properly
raised security concerns under Criterion L.
IV. Findings of Fact
The facts in this case are undisputed. In April 1999, the Individual was arrested and charged
with DUI, after consuming five beers. DOE Ex. 1 at 2; Tr. at 73. In June 2000, he was arrested
and charged with Public Intoxication. DOE Ex. 1 at 2; Tr. at 75-77. He consumed alcohol prior
to his arrest. Tr. at 77. In February 2009, the Individual was charged with DWI and Open
Container, after consuming some alcohol. DOE Ex. 1 at 2; Tr. 78-80. In November 2009, the
Individual was charged with Open Container. DOE Ex. 1 at 1; Tr. at 61, 87. He consumed five
beers prior to the charge. DOE Ex. 1 at 1; Tr. at 87-88. In addition to the four alcohol-related
incidents, the Individual had a positive BAT in March 2012. DOE Ex. 1 at 1-2. Upon reporting
to work in March 2012, the Individual was asked to submit to a BAT. The BAT showed a higher
than allowable level of alcohol in the Individual’s system. DOE Ex. 13 at 4-5; DOE Ex. 12 at 3-
4; DOE Ex. 12 at 3; Ex. 15 at 15-16. As a result of the positive BAT and subsequent PSI, in
May 2012, the Individual was evaluated by a DOE psychologist. After the evaluation, the DOE
psychologist concluded that the Individual met the DSM-IV-TR criteria for Alcohol-Related
Disorder, NOS. DOE Ex. 1 at 1; DOE Ex. 9 at 6. The DOE psychologist recommended that the
Individual continue “aftercare treatment with a focus on abstinence for at least nine months
post-violation and random BATS for 12 months post-violation. DOE Ex. 9 at 6.
V. Analysis
I have thoroughly considered the record of 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) and the Adjudicative Guidelines. After due
deliberation, I have determined that the Individual’s access authorization should be restored. I
find that restoring the Individual’s DOE 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. Mitigating Evidence
1. Lay Testimony
At the hearing, the Individual testified that he agreed with the DOE psychologist’s diagnosis of
Alcohol-Related Disorder, NOS. Tr. at 71. He stated that the day he had the positive BAT, he
entered an Intensive Outpatient Treatment Program (IOP). Tr. at 94. He asserted that he never
missed a day of class or aftercare. Tr. at 94. He attended Alcoholics Anonymous (AA), but he
finds the IOP’s aftercare more professional. Tr. at 100. He testified that he is seeing his
psychologist on a regular basis. Tr. at 97. They discuss stress management, family problems,
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and what triggered his alcohol consumption. Tr. at 95. Although he has been in situations
where alcohol is present and his brother consumes alcohol in his presence, he has not consumed
alcohol since the positive BAT. Tr. at 99.
The Individual was diagnosed with diabetes in 2009. Tr. at 25, 43, 51, 88. The Individual, his
wife, and his brother testified that there is a long, distressing history of diabetes in their family.
Tr. at 26, 51, 52, 90. In 2009, after the diabetes diagnosis, he reduced his alcohol consumption.
Tr. at 25, 43, 51, 89, 105. The Individual and his brother testified that his health concern is a
motivating factor in him remaining abstinent. Tr. at 51-52, 105. The Individual, his wife, and
his brother testified that while he did reduce his alcohol consumption after his diagnosis of
diabetes in 2009, he did not completely abstain.4/ Tr. at 26, 43-44, 51, 88, 107. The Individual
and his wife testified that the evening prior to his positive BAT, the Individual received some
startling, and unwelcome, family news. Tr. at 28, 91. The news caused him to consume more
that evening that he would typically consume, leading to the positive BAT. Tr. at 28, 91.
His wife, his brother, and his friend testified that the Individual has not consumed any alcohol
since March 2012. Tr. at 31, 47, 53, 57. Both his wife and his brother stated that the Individual
has been present where alcohol has been served, but he has refrained from consuming any. Tr. at
47, 53, 56. The Individual’s wife, brother, and friend revealed that the Individual is open about
his treatment. Tr. at 40-41, 54-55, 141. He has told them that the therapy is helping. Tr. at 54,
141. His brother stated that the Individual’s attitude about attending the IOP and aftercare has
been upbeat. Tr. at 55. The Individual’s brother and friend testified that the Individual is serious
about his treatment. Tr. at 55, 141, 143. The friend stated, “I think he’s taking it very seriously.”
Tr. at 141.
2. Expert Testimony
After listening to all the testimony at the hearing, the DOE psychologist did not modify his
opinion regarding the Individual’s rehabilitation and reformation. Tr. at 113. He still believes
the Individual needs nine months of abstinence to show rehabilitation and reformation. Tr. at
113. He stated that it is not unusual that the Individual did not like AA, and he opined that there
are positive indicators in the Individual’s recent history. Tr. at 112-13, 120-21, 132. First, the
DOE psychologist declared that the fact that the Individual went to the IOP immediately after the
BAT reflects positively on his motivation. Tr. at 132. Second, the fact that he is in individual
therapy increases the Individual’s potential for sobriety. Tr. at 121. To conclude, the DOE
psychologist stated that, while he still believes the Individual should not be considered
rehabilitated or reformed until he has been abstinent for nine months, the Individual is at a low
risk for relapse.5/ Tr. at 150.
4/ While all three witnesses testified that he did stop consuming alcohol for approximately two months,
they all confirmed that he had no intention of maintaining his abstinence. Tr. at 26, 43-44, 51, 88-89,
107. His brother testified that the Individual just “got scared” and that is why he stopped consuming
alcohol for a short period. Tr. at 51-52, 107.
5/ As of the date of the hearing, the Individual had been abstinent for six months.
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The Individual’s psychologist agreed with the DOE psychologist’s diagnosis of Alcohol-Related
Disorder, NOS. Tr. at 10. She stated that the Individual completed the IOP and he has attended
aftercare regularly. Tr. at 8, 11-12. She opined that he is more active in the program than the
average participant. Tr. at 11-12. In their therapy sessions, the Individual and his psychologist
speak about his family life, work, cravings and stress management. Tr. at 13. The Individual has
maintained his abstinence. Tr. at 14. She opined that the Individual will not consume alcohol
again because of his unique health concerns and family history and deaths. Tr. at 14, 15. Like
the DOE psychologist, she concluded that the Individual is at a low risk for relapse. Tr. at 16.
B. Hearing Officer Evaluation of the Evidence
1. Criteria H and J Concerns
OHA Hearing Officers generally accord deference to the opinion of mental health professionals
regarding the issue of rehabilitation and reformation. See, e.g., Personnel Security Hearing,
Case No. TSO-1057 (2011); Personnel Security Hearing, Case No. TSO-0562 (2008); Personnel
Security Hearing, Case No. TSO-0462 (2001). However, as a Hearing Officer, my responsibility
is to make an independent assessment of the seriousness of the risk to national security and the
common defense posed by allowing an individual to possess a DOE access authorization. In that
connection, I will consider those factors set forth at 10 C.F.R. § 710.7(c)6/ in deciding whether
restoring the Individual’s access authorization would endanger the common defense and security
and would be clearly consistent with the national interest.
Although the DOE psychologist did not change his recommendation based on the hearing
testimony that the Individual needs a total of nine months of abstinence to achieve rehabilitation
or reformation, he nonetheless opined that the Individual is a low risk for relapse. The
Individual’s psychologist agreed that the Individual is a low risk for relapse. I found the
Individual to be a credible witness whose intention is not to consume alcohol again. His family
history, along with the problems that alcohol consumption has caused in his life, has frightened
him. In addition, he honestly does not believe he needs alcohol in his life. His brother, his wife,
and his friend confirm that he has not consumed alcohol and honestly does not seem to need it.
The DOE psychologist and the Individual’s psychologist persuaded me that the Individual’s risk
of relapse is acceptably low even though the Individual is three months short of fully achieving
rehabilitation or reformation. After considering the “total person concept” set forth in the
Adjudicative Guidelines and the Part 710 regulations, I find that the Individual has sufficiently
mitigated the security concerns associated with the diagnosis of Alcohol-Related Disorder, NOS,
and his alcohol-related incidents. Personnel Security Hearing, Case No. TSO-803 (2010);
6/ 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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Personnel Security Hearing, Case No.TSO-1076 (2011) (restoring security clearance where both
experts testified that risk of relapse was low).
2. Criterion L Concern
Prior to March 2012, the Individual had four alcohol-related incidents between 1999 and 2009.
Because the Individual’s alcohol use led to the concerns raised under Criterion L, and because I
find that the risk is low that he will return to alcohol use, I find it unlikely that he will have any
more alcohol-related incidents involving law enforcement. For this reasons I have determined
that the Individual has mitigated the concerns raised under Criterion L.
VI. Conclusion
Upon consideration of the entire record in this case, I find that there was sufficient evidence that
raised doubts regarding the Individual’s eligibility for a security clearance under Criteria H, J
and L of the Part 710 regulations. I also find that the Individual has presented sufficient
information to resolve those concerns. Therefore, I conclude that restoring the Individual’s
access authorization “would not endanger the common defense and security and would be clearly
consistent with the national interest.” 10 C.F.R. § 710.27(a). Consequently, it is my decision
that the Individual’s access authorization should be restored at this time. The parties may seek
review of this decision by an Appeal Panel. 10 C.F.R. § 710.28.
Janet R. H. Fishman
Hearing Officer
Office of Hearings and Appeals
Date: November 15, 2012