PSH-12-0104

* 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 )
)
Filing Date: August 8, 2012 ) Case No. PSH-12-0104
)
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Issued: December 13, 2012
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Decision and Order
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Kimberly Jenkins-Chapman, Hearing Officer:
This Decision concerns the eligibility of xxxxxxxxxxxxxx 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
discussed below, after carefully considering the record before me in light of the relevant
regulations, I have determined that the individual’s access authorization should not be granted.
I. Background
The individual is an applicant for a DOE security clearance. In April 2012, as part of a
background investigation, the Local Security Office (LSO) conducted a Personnel Security
Interview (PSI) of the individual to address his alcohol use. In addition to the PSI, the LSO
requested the individual’s medical records and recommended a psychiatric evaluation of the
individual by a DOE consultant psychiatrist (DOE psychiatrist). The DOE psychiatrist examined
the individual in May 2012 and memorialized his findings in a report (Psychiatric Report).
According to the DOE psychiatrist, the individual suffers from Alcohol Dependence. The DOE
psychiatrist further concluded that the individual’s Alcohol Dependence is a mental illness that
causes or may cause a significant defect in his judgment and reliability.
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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).
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In July 2012, the LSO sent a letter (Notification Letter) advising the individual that it possessed
reliable information that created a substantial doubt regarding his eligibility to hold an access
authorization. In an attachment to the Notification Letter, the LSO explained that the derogatory
information fell within the purview of two potentially disqualifying criteria set forth in the
security regulations at 10 C.F.R. § 710.8, notably subsections (h) and (j) (hereinafter referred to
as Criterion H and Criterion J, respectively).2
Upon receipt of the Notification Letter, the individual filed a request for a hearing. The LSO
transmitted the individual’s hearing request to the Office of Hearings and Appeals (OHA), and
the OHA Director appointed me as the Hearing Officer in this case. At the hearing that I
convened, the DOE Counsel called one witness, the DOE psychiatrist. The individual presented
the testimony of two witnesses, a nurse practitioner and his wife. He also testified on his own
behalf. The DOE and the individual submitted a number of written exhibits prior to the hearing.
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 denial”); 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
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). Hence, an individual is afforded the utmost latitude in the
presentation of evidence to mitigate the security concerns at issue.
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Criterion H relates to information that a person has “[a]n illness or mental condition of a nature which, in the
opinion of a psychiatrist or 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).
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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, 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 in favor of the national
security. Id.
III. The Notification Letter and the Security Concerns at Issue
As stated above, the LSO cites two criteria as bases for denying the individual’s security
clearance: Criteria H and J. To support Criterion H, the LSO relies on the diagnosis of the DOE
psychiatrist that the individual suffers from Alcohol Dependence.
As for Criterion J, the LSO cites the DOE psychiatrist’s opinion and the following additional
information: (1) the individual admitted that he drinks too much and maybe addicted; (2) the
individual admitted that in 2009, his wife and children expressed concern regarding his health
due to his consumption of alcohol. Also, in 2009, during a marriage counseling session, the
individual’s wife stated that the individual “is in his own little world when he drinks.” Despite
these expressed concerns, the individual continued to consume alcohol; (3) the individual
admitted that in 2009, his consumption of alcohol increased due to stress. During that time, he
would consume eight beers and three shots of tequila on weekends; and (4) the individual
admitted that in 1984, his wife told him that he was drinking too much. During that time, he was
consuming five beers and a Jack Daniels Manhattan each evening. In response to his wife’s
concerns, he stopped drinking the Manhattan, but continued consuming five beers each evening.
See DOE Exh. 1.
I find that the information set forth above constitutes derogatory information that raises questions
about the individual’s alcohol use under both Criteria H and J. First, a mental condition such as
Alcohol Dependence can impair a person’s judgment, reliability and 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). Second, the excessive
consumption of alcohol itself is a security concern because that behavior can lead to the exercise
of questionable judgment and the failure to control impulses, which in turn can raise questions
about a person’s reliability and trustworthiness. See id. at Guideline G.
IV. Findings of Fact
By his own account, the individual has been drinking alcohol since the age of 16. DOE Exh. 3.
By the age of 18, he would drink up to four beers on occasion and would drink to intoxication
once or twice a year. Id. While in college, the individual drank every couple of weeks at parties.
Id. After college, he got married in 1969, and began to consume two to three beers a few days a
week. Id. His drinking gradually increased so that by 1984, the individual was consuming up to
five beers, on average, four days a week. Id.
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For one year, in 1984, the individual would consume a Manhattan (whiskey and another
alcohol). Id. His wife expressed concern for his health and he decreased his alcohol
consumption by eliminating the Manhattans. Id.
In 1989, the individual moved to another state and his alcohol consumption increased. He
started to drink three to four 12-ounce beers each weeknight and seven to eight beers each
weekend. Id. According to the individual, he typically drank until he was “tipsy” on the
weekends. Id. In 1990, the individual purchased a tap and converted a refrigerator into a system
for refrigerated draft beer. Id. His alcohol consumption continued to gradually increase. By
2009, he was consuming eight to nine 12-ounce beers a day, to the point where he felt “tipsy.”
Id. His wife expressed concern again about his drinking while they were in a marital counseling
session, so the individual sought treatment to reduce his consumption. Id. During treatment, the
individual managed to reduce his consumption to his goal of two beers each night. However, he
did not remain at that rate long and increased his consumption to five beers almost every night.
The individual admits that in 2009, he drank the most and that his consumption increased due to
stress. During that time, he admitted to consuming eight beers and three shots of tequila on
weekends. Id.
V. Analysis
I have thoroughly considered the record in 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).3 After due deliberation, I have determined that the
individual’s access authorization should not be granted. I cannot find that granting the
individual’s 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. The Diagnosis of Alcohol Dependence
The DOE psychiatrist explained in detail in the Psychiatric Report and at the hearing how the
individual met the diagnostic criteria set forth in the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR)
for Alcohol Dependence. DOE Exh. 4, Transcript of Hearing (Tr.) at 98-111. The individual
does not dispute the DOE psychiatrist’s diagnosis of Alcohol Dependence. Therefore, the focus
of the analysis will be on whether the individual has demonstrated adequate evidence of
rehabilitation or reformation from Alcohol Dependence.
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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.
B. Evidence of Rehabilitation and Reformation from Alcohol Dependence
During the hearing, the individual testified that he had no idea that his level of alcohol
consumption was a problem. Tr. at 80. According to the individual, at the time of his evaluation
with the DOE psychiatrist, he was consuming four to five beers a night and did not believe he
was intoxicated. When questioned about his future intentions regarding his alcohol
consumption, the individual testified that he would prefer not to abstain completely from alcohol.
He stated that he enjoys drinking beer, but would reduce his consumption. Id. at 86. The
individual further testified that in the preceding month, he had reduced his consumption to two
beers a day and had abstained from alcohol for a total of seven days (non-consecutive). Id.
During the hearing, the individual offered the testimony of a psychiatric/mental health nurse
practitioner who testified that he has been seeing the individual since September 2012 and the
individual is being treated for Alcohol Abuse. Id. at 13. He testified that individual initially met
with a board-certified psychiatrist, who recommended that the individual adjust his consumption,
a harm reduction strategy, and follow-up with the nurse practitioner. Id. at 14. During the
course of his treatment, the individual successfully managed to reduce his consumption. He
testified that as of the date of the individual’s last follow-up, October 2012, the individual was
able to abstain from alcohol for seven days and did not exhibit any withdrawal symptoms. Id.
According to the nurse practitioner, initially the individual’s treatment goal was to reduce his
alcohol consumption to one to two drinks daily. Id. at 16. He testified that he now recommends
that the individual abstain from alcohol to preserve his overall physical health due to concerns of
high blood pressure and potential for liver disease. Finally, the nurse practitioner testified that
the individual’s prognosis is fairly good, but noted that he is only in the beginning stages of
treatment. Id. at 24.
The individual’s wife testified that she is proud that the individual has taken his alcohol
reduction seriously. Id. at 44. She added that the individual has followed through with the
motivation to reduce his consumption of beer. The wife testified that the most she has seen her
husband drink is seven to eight beers on a weekend. She noted that the individual was raised in a
dysfunctional, alcoholic family, and that he listened to her concern with his drinking and took it
seriously. According to the wife, she never sensed that the individual was trying to escape a
problem through his drinking, but rather just liked the taste of beer. Id. at 50. Although she
believes her husband is only a social drinker, she testified that he has had a number of physical
benefits due to his decreased consumption, including lower blood pressure. Id. at 51. Finally,
the wife corroborated the individual’s testimony that he has been abstinent from alcohol for
about seven days.
The DOE psychiatrist listened to all the testimony at the hearing before testifying himself. He
noted that the individual has only abstained for seven days, although he recommended in his
report that the individual abstain for one year. Id. at 101. The DOE psychiatrist testified that he
has not changed his opinion and still believes that the individual should be abstinent for one year,
a recognized standard for Alcohol Dependence, to achieve adequate evidence of rehabilitation.
He noted that the individual has not been able to control his abstinence for more than seven days.
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Id. at 103. He further testified that while he prefers that the individual enter an intensive
outpatient treatment program, he would exchange this requirement for the individual’s
participation in Alcoholics Anonymous. According to the DOE psychiatrist, the individual’s
prognosis in the short term is not good, but if the individual abstains for one year, his risk of
relapse is low. Id.
C. Hearing Officer’s Evaluation of the Evidence
In the administrative process, Hearing Officers accord deference to the expert opinions of
psychiatrists, psychologists and other mental health professionals regarding rehabilitation and
reformation. See Personnel Security Hearing, Case No. TSO-0728 (2009).4 The DOE
psychiatrist convinced me that the individual needs at least one year of abstinence to be
considered adequately rehabilitated. Although the individual has stated that he has reduced his
alcohol consumption, it is clear that the individual is only in the very early stages of recovery.
During the hearing, the individual acknowledged that he would prefer not to abstain and still
enjoys drinking beer. As of the date of hearing, he has only abstained from alcohol for a period
of seven, non-consecutive days. Therefore, the individual has not yet established a pattern of
abstinence. See Adjudicative Guidelines at Guideline G ¶ 23(b). Based on the foregoing, I find
that the individual has not demonstrated adequate evidence of rehabilitation at this time. For this
reason, I find that he has not mitigated the security concerns under Criteria H and J.
D. 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 Criteria H and 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 find that the individual has not brought forth convincing evidence to mitigate the
security concerns associated with Criteria H and J. I therefore cannot find that granting the
individual’s access authorization would not endanger the common defense and security and
would be consistent with the national interest. Accordingly, I find that the individual’s access
authorization should not 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.
Kimberly Jenkins-Chapman
Hearing Officer
Office of Hearings and Appeals
Date: December 13, 2012
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Decisions issued by 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.