PSH-12-0094

* 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 11, 2012 ) Case No.: PSH-12-0094
)
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Issued: November 6, 2012
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Decision and Order
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Robert B. Palmer, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (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 For the reasons set forth below, I conclude that the individual’s security
clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor, and was granted a
security clearance in connection with that employment. On June 9, 2011, the individual was arrested
for a number of traffic-related offenses, including Driving Under The Influence Of Alcohol (DUI),
1An 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.
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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as the result of an accident during which the vehicle he was driving struck a concrete barrier.
Because this information raised legitimate security concerns, the local security office (LSO)
summoned the individual for an interview with a personnel security specialist in April 2012. After
this PSI failed to adequately address the LSO’s concerns, the individual was referred to a local
psychiatrist (hereinafter referred to as “the DOE psychiatrist”) for an agency-sponsored evaluation.
The DOE psychiatrist performed an evaluation of the individual in May 2012, and prepared a report
for the LSO. After reviewing this report and the rest of the individual’s personnel file, the LSO
determined that derogatory information existed that cast into doubt the individual’s eligibility for
access authorization. It informed the individual of this determination in a letter that set forth the
DOE’s security concerns and the reasons for those concerns. I will hereinafter refer to this letter as
the Notification Letter. The Notification Letter also 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. The LSO forwarded this request to the Office of
Hearings and Appeals, and I was appointed the Hearing Officer. The DOE introduced eight exhibits
into the record of this proceeding and presented the testimony of the DOE psychiatrist. The
individual introduced one exhibit and presented the testimony of two witnesses, in addition to
testifying himself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraph (j) of the criteria for eligibility for access to classified matter or special nuclear
material set forth at 10 C.F.R. § 710.8.
Under criterion (j), information is derogatory if it indicates that the individual “has been, or is, a user
of alcohol habitually to excess, or has been diagnosed by a psychiatrist as alcohol dependent or as
suffering from alcohol abuse.” 10 C.F.R. § 710.8(j). As support for this criterion, the Letter cites the
diagnosis of the DOE psychiatrist that the individual suffers from Alcohol Abuse, the DUI arrest,
and the individual’s history of excessive alcohol consumption. This history is described in section
IV. below.
This derogatory information adequately justifies the DOE’s invocation of criterion (j), and raises
significant security concerns. Excessive alcohol consumption such as that exhibited by the
individual often leads to the exercise of questionable judgement or the failure to control impulses,
and can therefore raise questions about an individual’s reliability and trustworthiness. See Revised
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Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, The White
House (December 19, 2005) (Adjudicative Guidelines), Guideline G.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictate
that in these proceedings, a Hearing Officer must undertake a careful review of all of the relevant
facts and circumstances, and make a “common-sense judgment . . . after consideration of all relevant
information.” 10 C.F.R. § 710.7(a). I must therefore consider all information, favorable or
unfavorable, that has a bearing on the question of whether granting or restoring a security clearance
would compromise national security concerns. Specifically, the regulations compel me to consider
the nature, extent, and seriousness of the individual’s conduct; the circumstances surrounding the
conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time
of the conduct; the absence or presence of rehabilitation or reformation and other pertinent
behavioral changes; the likelihood of continuation or recurrence of the conduct; and any other
relevant and material factors. 10 C.F.R. § 710.7(c).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring 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). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed by
OSA, 1996), and cases cited therein. The regulations further instruct me to resolve any doubts
concerning the individual’s eligibility for access authorization in favor of the national security.
10 C.F.R. § 710.7(a).
IV. FINDINGS OF FACT
The following facts are derived from the individual’s April 2012 PSI and his testimony at the
hearing, and are undisputed. The individual began drinking during his sophmore year in college in
2008. He would drink approximately once per month, consuming anywhere from one to two beers
up to a maximum of 12 beers per evening. On most occasions, he would drink at least four or five,
and it would take this amount of consumption for him to become intoxicated. Beginning in the
summer of 2010, his drinking increased. He would drink two or three times per week, consuming
between four and 15 beers on each occasion, and becoming intoxicated on a weekly basis. After the
individual began working for the DOE contractor in January 2011, his level of consumption
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decreased. From then until his accident in June, he drank once or twice per month, consuming up
to 10 beers over five or six hours on each occasion, and becoming intoxicated approximately once
per month. He estimated that in the year preceding his PSI, he had driven while intoxicated two to
three times, including on the night of his arrest, and that since 2008, he had suffered five alcoholic
blackouts.
At approximately 3:00 p.m. on the afternoon of June 9, 2011, the individual joined a group of his
co-workers who were “tailgating” at a local stadium before a baseball game. When the baseball
game started at seven or seven-thirty, the individual and most of his fellow celebrants decided to
remain in the parking lot eating and drinking, rather than enter into the stadium to watch the game.
The individual ate and continued to drink beer until approximately 10 o’clock that night. During this
time, he estimated, the individual drank 11 beers. In a futile attempt to regain his sobriety before
driving to his friend’s house, where he had planned to spend the night, the individual waited until
11:30 p.m. or midnight before departing from the stadium parking lot. The individual’s memories
of the events that followed are hazy at best. According to the police report, the individual was
travelling at a high rate of speed on a local highway when he failed to negotiate a curve, and his
vehicle struck a concrete barrier. The individual, who was unhurt, then left the vehicle, which had
been extensively damaged, in the middle of the roadway and began walking toward the nearest exit.
The police arrived at the scene, had the vehicle cleared from the road, and then located the
individual. After he failed a field sobriety test, the police arrested the individual and took him to a
local hospital, where blood was drawn at 1:45 a.m. on June 10th for the purpose of measuring the
individual’s blood alcohol content (BAC). The individual’s BAC was measured at .209, more than
two and one-half times the legal limit.
As a result of this arrest, the individual was placed in a diversionary program for first-time DUI
offenders. In an order dated December 2, 2011, and “following a colloquy before the Court wherein
the defendant expressed an understanding of the program,” DOE Ex. 6 at 11, a judge placed the
individual in the program, conditioned upon the individual completely abstaining from alcohol and
illegal drug use for a period of one year, attending at least three Alcoholics Anonymous (AA)
meetings, paying court costs and other applicable fees, and successfully completing highway safety
and DUI classes.
For two months after the accident, the individual did not consume alcohol. However, after that
period, the individual began drinking approximately once per month, consuming three to five beers
each time. He reported drinking to intoxication two or three times during this period. In December
2011, after the individual was placed in the DUI diversion program, the individual drank to
intoxication, consuming approximately ten 16-ounce beers over six or seven hours at his office’s
Christmas party. From January 2012 until the date of the hearing, the individual drank on two
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occasions. The first was in late February, and the last time that the individual consumed alcohol was
in late March. On both occasions, the individual had three to five beers. The individual stated that
he did not drive after any of these instances of alcohol consumption.
V. ANALYSIS
A. Mitigating Evidence
At the hearing, the individual generally did not dispute the allegations set forth in the Notification
Letter. Instead, through his testimony and that of his father and his cousin, he attempted to show that
he has established a pattern of responsible drinking that is sufficient to adequately address the
DOE’s security concerns.
The individual testified that his greatest consumption of alcohol was during his college years, and
that after he started working, his drinking decreased because of his added responsibilities. Hearing
transcript (Tr.) at 26. After his arrest, the individual testified, he was “upset with [himself] for what
had happened,” and he did not drink alcohol for approximately two months. When he resumed
drinking, he made sure that, when he went out, he had a way to return home that did not involve
driving under the influence of alcohol. Tr. at 25. He believes that he is in control of his drinking. Tr.
at 27. None of his family or friends have told him that he has a drinking problem, and alcohol has
not adversely affected his relationships with them or his performance at work. Tr. at 30
The individual then testified about the highway safety and DUI classes that he took as a condition
of his participation in the DUI diversion program. He said that the highway safety class involved
the effects that alcohol consumption has on the body, the responsible consumption of alcohol and
the traffic laws involving drinking. Tr. at 31. The DUI class was an extension of the highway safety
class, and involved group discussions where the participants would talk about their arrests, any
problems they had had with alcohol in the past, and what they intended to do to avoid future
problems. Tr. at 31-32.
At the end of the discussions, the individual continued, the instructor gave a blanket
recommendation that all of the program participants refrain from alcohol use. However, he claimed,
the instructor realized that most of the participants would continue to drink despite the requirement
of the program that they remain abstinent. Consequently, she recommended that if they chose to
drink, they should do so responsibly. Tr. at 34. From January 1, 2012, the date that the individual
believed that his probation began, until his DUI class ended on February 8, 2012, the individual
testified that he did not consume any alcoholic beverages. Tr. at 35. However, after considering the
instructor’s recommendation, the individual drank on two occasions, both times in a manner that he
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considered to be responsible. Tr. at 36. After his PSI, the individual realized the importance that the
DOE attached to his remaining abstinent, and he stopped drinking completely. His last consumption
of alcohol occurred in late March 2012. Tr. at 37-38. He intends to remain abstinent throughout the
remainder of his probation, and after that to “just drink one or two beers, on occasion.” Tr. at 40.
The individual’s father testified that, other than the instance in December 2011 when the individual
drank to intoxication at his office Christmas party, the individual has consumed alcohol responsibly
since his arrest. Tr. at 92. He further stated that the individual has not consumed alcohol since he
received the DOE psychiatrist’s report in early April 2012. Tr. at 90. The individual’s cousin
testified that each time that he has witnessed the individual drinking, the individual has done so
responsibly, and that he has not seen the individual consume alcohol since April 2012. Tr. at 77-80.
B. Hearing Officer’s Evaluation Of The Evidence
After careful consideration of this testimony and of the record as a whole, I find that substantial
security concerns remain regarding the individual’s usage of alcohol. As an initial matter, I do not
believe that the individual has established a period of responsible alcohol use that is of sufficient
duration to constitute a significant mitigating factor. Although the evidence does indicate that the
individual reduced his consumption significantly after he started working in January 2011, after his
June 2011 accident, and most recently, after his March 2012 PSI, his last three usages of alcohol
were anything but responsible. The individual admittedly drank to intoxication at his office
Christmas party in mid-December 2011, shortly after the date of a court order imposing a 12-month
period of probation during which the individual was not to consume alcohol or use illegal drugs.
While the individual testified that he believed at that time that his probation started in January 2012
and that he was not informed otherwise, the most reasonable conclusion is that his probation began
on the date of the court order admitting him into the DUI diversion program, which was
December 2, 2011. However, regardless of whether the individual was on probation at the time of
his Christmas party, consuming ten 16-ounce beers over a period of six or seven hours can hardly
be considered responsible alcohol use.
The individual admittedly drank beer while on probation in February and March 2012. While he
attempted to excuse these violations by citing the alleged recommendation of his DUI instructor that
if he and his classmates were going to drink, they do so “responsibly,” he recognized that the
instructor was not condoning such behavior, Tr. at 34, and he cited no basis for reasonably believing
that his instructor had the authority to alter the terms of his court-ordered probation. Consumption
of alcohol in any amount in violation of a court order cannot be considered responsible behavior.
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Furthermore, Adjudicative Guideline G provides for the establishment of a pattern of responsible
use as a mitigating factor when the individual also “acknowledges his or her . . . issues of alcohol
abuse [and] provides evidence of actions taken to overcome the problem.” Adjudicative Guidelines,
Guideline G, ¶ 23(b). The individual has done neither of these things. Upon receiving a diagnosis
of Alcohol Abuse from a trained mental health professional, a prudent course of action would have
been to seek treatment, or at least to seek a second opinion from a qualified professional, such as a
licenced substance abuse counselor. Yet when the individual received the diagnosis of the DOE
psychiatrist in June 2012, he took neither of these actions, believing “that [he] didn’t actually have
a problem, and that, [he] wouldn’t need the alcohol treatment, in order to . . . control what was
perceived to be a problem.” Tr. at 65. Indeed, when asked at the hearing to access the individual’s
progress toward recovery from Alcohol Abuse, the DOE psychiatrist expressed doubt as to whether
the individual was, in fact, in recovery, because he had not yet identified himself as having a
drinking problem, a factor that he referred to as “a key missing piece.” Tr. at 130. Moreover, the
DOE psychiatrist expressed “concerns” about the individual’s ability to remain abstinent, and
indicated that there is currently insufficient evidence to ascertain, with any degree of certainty,
whether or not the individual will be able to adhere to a pattern of responsible alcohol use. Tr. at
132-133. I agree with this assessment. Accordingly, I conclude that the individual’s six months of
responsible behavior regarding alcohol (from his last admitted usage in late March 2012 to the date
of the hearing), are insufficient to demonstrate that his chances of returning to a pattern of alcohol
abuse are sufficiently small. The individual’s failure to clearly acknowledge that he has a drinking
problem and the absence of a support system, such as ongoing participation in AA or individual
counseling, support this conclusion. No other significant mitigating factors are evident from the
record.
VI. CONCLUSION
As set forth above, I find that the individual has not successfully addressed the DOE’s security
concerns under criterion (j). I therefore conclude that he has not demonstrated that restoring his
access authorization would not endanger the common defense and would be clearly consistent with
the national interest. Accordingly, I find that 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.
Robert B. Palmer
Hearing Officer
Office of Hearings and Appeals
Date: November 6, 2012
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