PSH-12-0093

* 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 24, 2012 )
) Case No.: PSH-12-0093
__________________________________________)
Issued : November 15, 2012
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to
as “the individual”) to hold an access authorization1 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 fully discussed below, after carefully considering the record before
me in light of the relevant regulations and Adjudicative Guidelines, I have determined
that the individual’s access authorization should be granted.
I. Background
The individual is an applicant for a DOE security clearance in conjunction with his
employment by a DOE contractor. In October 2011, the individual completed a
Questionnaire for National Security Positions (QNSP) as part of his application for a
DOE security clearance and, on January 26, 2012, the Local Security Office (LSO)
conducted a personnel security interview (PSI) with the individual to address concerns
about various matters disclosed on the QNSP, including those related to the individual’s
alcohol use. See Exhibits 7 and 8. Following the PSI, the individual was referred to a
1 Access authorization is defined as “an administrative determination that an individual is eligible for
access to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R.
§ 710.5(a). Such authorization will be referred to variously in this Decision as access authorization or
security clearance.
2
DOE consulting psychologist for an evaluation which took place on April 9, 2012. See
Exhibit 6.
Since neither the PSI nor the DOE psychologist’s evaluation resolved the security
concerns arising from the individual’s alcohol usage, the LSO informed the individual in
a June 25, 2012, letter (Notification Letter) that it possessed reliable information that
created substantial doubt regarding his eligibility to hold a security clearance. In an
attachment to the Notification Letter, the LSO explained that the derogatory information
fell within the purview of two potentially disqualifying criterion set forth in the security
regulations at 10 C.F.R. § 710.8, subsections (h) and (j) (hereinafter referred to as
Criterion H and Criterion J, respectively).2
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. The Director of the
Office of Hearings and Appeals (OHA) appointed me the Hearing Officer in the case and,
subsequently, I conducted an administrative hearing in the matter. At the hearing, the
LSO introduced nine numbered exhibits into the record and presented the testimony of
one witness, the DOE psychologist. The individual, represented by counsel, introduced
12 lettered exhibits (Exhibits A-L) into the record and presented the testimony of seven
witnesses, including that of himself and that of a forensic psychiatrist. The exhibits will
be cited in this Decision as “Ex.” followed by the appropriate numeric or alphabetic
designation. The hearing transcript in the case will be cited as “Tr.” followed by the
relevant page number.3
II. Regulatory Standard
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).
2
Criterion J relates to 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 . . .” and Criterion H 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) and (h).
3 OHA decisions are available on the OHA website at www.oha.doe.gov. A decision may be accessed by
entering the case number in the search engine at www.oha.gov/search.htm.
3
The individual must come forward with evidence to convince the DOE that granting 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). Thus, an individual is afforded the
utmost latitude in the presentation of evidence to mitigate the security concerns at issue.
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, as to whether the
granting or continuation of 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 cited two criteria as the bases for denying the individual’s
security clearance, Criterion H and Criterion J. 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). It is
well established that “certain emotional, mental, and personality conditions can impair
judgment, reliability, or trustworthiness.” See Guideline I 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). Conduct involving such psychological
conditions can raise questions about an individual’s ability to protect classified
information. Personnel Security Hearing, Case No. PSH-11-0010 (March 1, 2012)
(Alcohol Related Disorder, NOS, found to raise security concerns under Criterion H).
With respect to Criterion H, the LSO relied on the April 9, 2012 report of the DOE
psychologist which concluded that the individual met the Diagnostic Statistical Manual
of the American Psychiatric Association IVth Edition TR (DSM-IV-TR) criteria for
Alcohol-Related Disorder, Not Otherwise Specified (NOS), without adequate evidence of
rehabilitation or reformation. Ex. 1 and Ex. 6. Based upon the report of the DOE
psychologist, the LSO properly invoked Criterion H.
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(h). 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 at
4
Guideline G; Personnel Security Hearing, Case No. PSH-11-0035 (April 19, 2012). With
respect to Criterion J, the LSO noted, inter alia, (1) two incidents (October 2008 and May
2009) in which the individual’s alcohol intoxication led to police intervention, (2) the
individual admitting that he had blacked-out approximately 75 times and passed-out
approximately 50 to 100 times between September 2007 and May 2011 as a result of his
use of alcohol, (3) the individual admitting that he had been intoxicated approximately
100 or more times between 2006 and 2010, and (4) the individual admitting that he had
been intoxicated as recently as mid-January 2012. Ex. 1. Additionally, the DOE
psychologist concluded that the individual is a user of alcohol habitually to excess and
that his diagnosis of Alcohol-Related Disorder, NOS, is an illness or mental condition
which has caused and could continue to cause significant defects in his judgment or
reliability. Ex. 6. In light of these factors, the LSO properly invoked Criteria J.
IV. 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)4 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should be granted. The specific findings that I make in support of this
decision are discussed below.
A. Mitigating Evidence
The individual testified that the DOE psychologist’s report was an accurate description of
his history with alcohol, with a few exceptions discussed below. Tr. at 73. Prior to
relocating to commence employment with a DOE contractor, the individual had been a
college and graduate student, completing both a four-year Bachelor of Science degree
and a one-year Master of Science degree. Id. at 75. The university that he attended is
regarded as a “party school” and consuming alcohol is a common aspect of the social
environment at the school. For the individual, going out and drinking alcohol was a
socially acceptable way to have fun and meet new people; it was something that he
“chose to do as [his] social activity for the weekend after a long week of doing homework
and studying.” Id. at 74. His pattern of alcohol usage during this period of time was not
viewed as unusual at his university. Id. at 60-63, 67, 71, 74.
On two occasions (October 2008 and May 2009), the individual’s consumption of alcohol
led to the involvement of law enforcement officers; however, neither of those occasions
resulted in arrest or referral for treatment or counseling. Id. at 78, 84.
4 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.
5
The individual’s alcohol consumption while at the university resulted in numerous
instances of intoxication, some of which led to him either blacking-out or passing-out.
The individual defined blacking-out as where “you lose your memory for an extended
period of time during [a] night” and passing-out as “where you go home, you remember
everything, and … you don’t remember exactly getting into bed, but you’re in bed.” Id. at
88-89. The individual testified that when he was questioned about his alcohol
consumption during the PSI and the DOE psychological evaluation, he wanted to be
careful not to deceive the DOE as to the extent of his alcohol consumption. Therefore, he
calculated the occasions on which he had used alcohol to excess during his university
years based on his memory of his alcohol consumption during his junior year of college,
which was the year in which he most frequently consumed alcohol to excess. Id. at 73-74,
87. As a result, he “over-reported” the occasions of his excessive use of alcohol to the
DOE when previously asked. The individual currently estimates that, during his five
years at the university, he blacked-out approximately 50 times and passed-out
approximately 50 times. Id. at 89. From my perspective as the hearing officer, I suspect
that the exact number of such occasions is unascertainable, but that the relevant and
appropriate conclusion is that the individual engaged in excessive consumption of alcohol
on a regular basis during his university years.
The individual stated that his excessive use of alcohol was limited to weekend evenings
so as not to interfere with his classes or completing assignments. Id. at 75. He testified
that “I would always get my schoolwork done before going out socially, whether I was
drinking or otherwise. So I never let it affect any of my work.” Id. He maintained a 3.67
grade point average as an undergraduate and a 4.0 grade point average as a graduate
student. Id.
The individual testified that his pattern of alcohol consumption changed in September
2011 when he relocated to commence employment with a DOE contractor. Once he
relocated, he tended to go out socially once a week and would limit his alcohol
consumption to one or two drinks on those evenings; occasionally he would go out twice
a week and, if an evening out stretched to five hours or so, he may have a third drink. Id.
at 76, 86. He believes that the only time that he has used alcohol to excess since starting
to work for the DOE contractor was in mid-January 2012; he has had no experiences of
blacking-out or passing-out as a result of alcohol consumption since he was a student. Id.
at 90-91. The individual testified that “Outside of the college atmosphere, I’ve
matured…. [I]n my mind, it’s not as acceptable, and since I am … not a student anymore,
I have to take on more responsibilities, as life is changing for me.” Id. at 76. When the
individual socializes in his current city, he usually does so with co-workers at the DOE
contractor who hold security clearances. Id. at 86.
In July 2012, shortly after the individual received the report of the DOE psychologist
diagnosing him with Alcohol-Related Disorder, NOS, and recommending that he abstain
from alcohol consumption for six months, the individual discontinued use of alcohol. Id.
at 77. He reported no symptoms of withdrawal and no alcohol cravings as a result of his
abstinence. Id. at 79. He and his girlfriend maintain alcohol in their home for her use and
for use by guests and he has been present in social setting with others who are drinking,
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all without feeling any urge to consume alcohol. Id. at 79, 84-85. The individual reported
that following any period of abstinence requested by the DOE, he expected that he would
resume use of alcohol; however, it would be the pattern of limited consumption that he
began in September 2011. Id. at 77-78, 86.
B. Review of Criterion H Security Concerns
Following the psychological evaluation of the individual in April 2012, the DOE
psychologist concluded that the individual was suffering from Alcohol-Related Disorder,
NOS. The DOE psychologist and the individual’s forensic psychiatrist have each stated
that the individual’s alcohol use (past and present) did not suggest that the individual
suffered from either alcohol dependence or alcohol abuse. Ex. 6, Tr. at 94. The
individual’s forensic psychiatrist testified that Alcohol-Related Disorder, NOS, is a
diagnosis which he rarely uses in his practice and that he could not agree or disagree with
the diagnosis as of the date it was given. Id. at 95.
The DOE psychologist testified that there is no body of evidence with respect to
rehabilitation for Alcohol-Related Disorder, NOS; however, such rehabilitation would
occur when a person demonstrated the ability to control his or her ingestion of alcohol.
When a person is able to discontinue consumption of alcohol without symptoms of
withdraw or having strong cravings, it demonstrates that a person can control their
ingestion of alcohol. Id. at 106. Although the DOE psychologist had recommended in his
April 2012 report that the individual abstain from alcohol consumption for six months,
the DOE psychologist testified that the individual’s abstinence to date without symptoms
of withdrawal or cravings has demonstrated his ability to control his alcohol use. The
DOE psychologist does not believe that an additional period of abstinence would give
him any greater confidence than he already has based upon the individual’s abstinence to
date. Id. at 105-106. The DOE psychologist testified that the individual has shown
adequate evidence of rehabilitation or reformation with regard to Alcohol-Related
Disorder, NOS, and, further, that the individual “no longer earns” the diagnosis of
Alcohol-Related Disorder, NOS. Id. at 113-114.
Security concerns are triggered under Criterion H when a person has an illness or mental
condition which in the opinion of a psychiatrist or licensed clinical psychologist could
cause a significant defect in judgment or reliability. Those concerns may be mitigated
when the person shows “no indication of a current problem.” Adjudicative Guidelines at
Guideline I, ¶ 29(e). In light of the DOE psychologist’s testimony that the individual no
longer meets the diagnostic criteria for Alcohol-Related Disorder, NOS, I find that the
individual has resolved the Criterion H security concerns.
C. Review of Criterion J Security Concerns
The DOE psychologist did not diagnose the individual as alcohol dependent or as
suffering from alcohol abuse and the security concerns raised under Criterion J relate to
the individual’s use of alcohol habitually to excess. Based upon the record, there is no
question that the individual consumed alcohol habitually to excess during his university
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years. The question remaining is whether the Criterion J security concerns are resolved
by the individual’s altered patterns of alcohol consumption since September 2011.
As noted above, the individual testified that upon entering the professional workforce in
September 2011 he reduced his pattern of alcohol consumption and would ordinarily go
out only once or twice a week and usually have only one or two drinks on any occasion.
Id. at 76. Since September 2011, the individual believes he was intoxicated on one
occasion only (mid-January 2012) and he has not drank to the point of passing-out or
blacking-out. Id. at 90-91. Subsequent to receiving the Notification Letter in July 2012,
the individual has abstained from all alcohol consumption. Id. at 77. His description of
his post-September 2011 alcohol consumption and abstinence was corroborated by the
testimony of his girlfriend (who knew the individual during his student years as well) and
several current co-workers with whom he socializes or plays sports. Id. at 27, 32-35, 38-
43, 45, 47-55, 57, 60-68.
The DOE psychologist and the individual’s forensic psychiatrist observed the
administrative hearing and commented on the consistently of the individual’s testimony
with his prior statements to them during their respective interviews. Id. at 97, 104, 109.
The individual’s forensic psychiatrist commented favorably on the consistently in the
testimony of the witnesses. Id. at 96-97.
In discussing the individual’s probable consumption of alcohol in the future, both doctors
differentiated between his alcohol consumption as a student and as a working
professional. Each doctor discussed the transition from college into the workforce as a
movement from one stage of development to another stage; entering the professional
environment represents an opportunity to mature and to leave in the past behaviors that
may have seemed acceptable in college but are not appropriate in the working world. Id.
at 97, 100, 102, 110. The doctors concluded that the individual had made such a
transition. Id. at 101, 102, 103, 110. The individual’s forensic psychiatrist discussed four
risk factors that might cause one who had used alcohol habitually to excess in an earlier
period to abuse alcohol in a later period. He opined that those four risk factors (genetic
history, external stressors, instability in relationships and concomitant psychiatric
disorders) are absent in the case of the individual. Id. at 100-102.
Both doctors were in accord that the future risk of the individual using alcohol to frequent
intoxication was low. Id. at 103, 108-109.
With respect to security concerns raised under Criterion J, Hearing Officers accord
deference to the opinions of mental health professionals. The individual transitioned
away from intense alcohol use and habitual intoxication upon leaving the university
environment prior to any concerns being raised about his alcohol use by the DOE or his
employer. The individual’s voluntary adoption of a different relationship to alcohol
supports the views of the doctors that he transitioned to a new developmental stage of life
when he left college and entered the workforce. The Adjudicative Guidelines recognize
that security concerns with respect to the use of alcohol habitually to excess may be
mitigated if such use occurred in such unusual circumstances that it is unlikely to recur.
See Adjudicative Guidelines at Guideline G, ¶23(a). In this case, the individual’s use of
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alcohol habitually to excess occurred only in the collegiate environment and two doctors
have concluded that the likelihood of such use in the future is low. Based on the
foregoing, I find that the individual has resolved the Criterion J security concerns.
C. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious security concerns under Criterion H and
Criterion J. After considering all the relevant information, favorable and unfavorable, in a
comprehensive common-sense manner, including weighing all the testimony and other
evidence presented at the hearing, I have found that the individual has brought forth
sufficient evidence to mitigate the security concerns associated with Criterion H and
Criterion J. Accordingly, I have determined that the individual’s access authorization
should be granted. The parties may seek review of this Decision by an Appeal Panel
under the regulations set forth at 10 C.F.R. § 710.28.
Wade M. Boswell
Hearing Officer
Office of Hearings and Appeals
Date: November 15, 2012