PSH-12-0110

* 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: August 20, 2012 ) Case No. PSH-12-0110
)
_________________________________________ )
Issued: November 16, 2012
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Hearing Officer Decision
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Diane DeMoura, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (“the Individual”) to hold a
Department of Energy (DOE) access authorization.1 This Decision will consider whether, based
on the testimony and other evidence presented in this proceeding, the Individual should be
granted a DOE access authorization. For the reasons detailed below, I find that the DOE should
grant the Individual access authorization.
I. BACKGROUND
The Individual is employed by a DOE contractor and is an applicant for DOE access
authorization. DOE Exhibit (“Ex.”) 3. In connection with his application, the Individual
completed a Questionnaire for National Security Positions (QNSP) in December 2011, on which
he reported an April 2010 arrest for Driving While Intoxicated (DWI). He subsequently
participated in a March 2012 Personnel Security Interview (PSI). DOE Ex. 11. After the PSI,
the Local Security Office (LSO) referred the Individual to a DOE consultant-psychologist (“the
DOE psychologist”) for an evaluation. The DOE psychologist evaluated the Individual in May
2012 and issued a report. DOE Ex. 6. After reviewing the Individual’s personnel security file,
the LSO informed the Individual in an August 2012 Notification Letter that there existed
derogatory information that raised security concerns under 10 C.F.R. §§ 710.8 (h) and (j)
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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(Criteria H and J, respectively).2 See DOE Ex. 1 (Notification Letter, August 2, 2012). The
Notification Letter also informed the Individual that he was entitled to a hearing before a
Hearing Officer in order to resolve the security concerns. Id.
The Individual requested a hearing on this matter. DOE Ex. 2. The LSO forwarded his request
to the Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing,
the DOE counsel introduced thirteen exhibits into the record (DOE Exs. 1-13) and presented the
testimony of one witness, the DOE psychologist. The Individual submitted three exhibits and
presented his own testimony, as well as the testimony of two witnesses: his cousin and his long-
time friend. See Indiv. Exs. A-C; Transcript of Hearing, Case No. PSH-12-0110 (hereinafter
cited as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including “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 of the individual at the time of the conduct; the
voluntariness of 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,” and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). In considering these factors, the Hearing Officer also consults adjudicative
guidelines that set forth a more comprehensive listing of relevant factors. See 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).
Ultimately, the decision concerning eligibility is “a comprehensive, common-sense judgment
made after consideration of all relevant information, favorable and unfavorable . . . .” 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the grant
or restoration of access authorization to the individual would not endanger the common defense
and security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a).
“Any doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
2 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). Criterion J relates to conduct indicating that the
Individual has “been, 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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national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988) (the
“clearly consistent with the interests of national security” test indicates that “security clearance
determinations should err, if they must, on the side of denials”).
III. DEROGATORY INFORMATION AND ASSOCIATED SECURITY CONCERNS
To support its Criteria H and J security concerns, the LSO cites the Individual’s pattern of
alcohol consumption, his past DWI arrests, and the DOE psychologist’s opinion that the
Individual is a user of alcohol habitually to excess raises security concerns. Id. It is well-
established that excessive use of alcohol raises security concerns because “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.”
Adjudicative Guidelines, Guideline G, ¶ 21. See also Personnel Security Hearing, Case No.
TSO-0678 (2008).3 In light of the Individual’s admitted pattern of alcohol consumption,
including two past alcohol-related arrests, and the DOE psychologist’s determination that the
Individual was a user of alcohol habitually to excess, I find that the LSO properly invoked
Criteria H and J.
IV. FINDINGS OF FACT AND ANALYSIS
A. The Individual’s Alcohol Use and Related Facts
The Individual began drinking alcohol at age seventeen, drinking primarily on the weekends.
DOE Ex. 6 at 2. The Individual increased his alcohol consumption as he got older, and he drank
beer several times per week. Id. at 2-3. In October 2001, the Individual consumed several beers
at his home before driving. The Individual was pulled over for speeding and was ultimately
arrested for DWI after failing field sobriety tests and a breathalyzer test. Id. at 3. Over the next
several years, the frequency of the Individual’s drinking decreased. Nonetheless, the Individual
was arrested again for DWI in April 2010, after failing breathalyzer test administered at a police
checkpoint. Id.; DOE Ex. 7. The Individual continued to consume alcohol after his 2010 DWI
arrest. DOE Ex. 6 at 3-4.
In May 2012, a DOE psychologist determined that the Individual did not meet the diagnostic
criteria for an alcohol-related disorder, but he was a user of alcohol habitually to excess, and his
pattern of alcohol consumption causes or may cause a significant defect in judgment or
reliability. Id. at 6. With respect to how the Individual could demonstrate adequate evidence of
rehabilitation or reformation, the DOE psychologist stated:
I would like to see [the Individual] stop drinking for a period of three months.
This would demonstrate that he in fact does not “need” alcohol. He would then
need to drink no more than four beers per occasion and not so quickly as to cause
intoxication. This should be the case for three months after his abstention (and
should be his discipline afterward).
3 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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Id. at 6. Finally, the DOE psychologist concluded that because the Individual “is not an
alcoholic,” he did not need to attend Alcoholics Anonymous meetings or other alcohol education
programs. Id.
B. Whether the Individual Has Mitigated the Security Concerns
Among the factors that may serve to mitigate security concerns raised by an individual’s alcohol
use are that “so much time has passed, or the behavior was so infrequent, or it happened under
such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s
current reliability, trustworthiness, or good judgment,” that “the individual acknowledges his or
her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this
problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if
an alcohol abuser),” and that “the individual has successfully completed inpatient or outpatient
counseling or rehabilitation along with any required aftercare, has demonstrated a clear and
established pattern of modified consumption or abstinence in accordance with treatment
recommendations such as participation in meetings of Alcoholics Anonymous or a similar
organization and has received a favorable prognosis by a duly qualified medical professional or a
licensed clinical social worker who is a staff member of a recognized alcohol treatment
program.” Adjudicative Guidelines, Guideline G, ¶ 23.
1. Lay Testimony
At the hearing, the Individual testified candidly regarding his past alcohol consumption. He
stated that prior to meeting with the DOE psychologist, he did not think he had an alcohol
problem. Tr. at 33. He testified that his evaluation with the DOE psychologist caused him to
realize that he wanted to be more responsible and more aware of his drinking behaviors. Tr. at
34, 50. He recognizes that drinking to excess leads to poor judgment. Tr. at 45. According to
the Individual, he has not consumed alcohol since shortly before his meeting with the DOE
psychologist in May 2012. Tr. at 33. He has made a conscious decision to not consume alcohol
in order to show that he does not need to drink. Tr. at 34. He stated that he used to drink with
friends, but he has informed them of his intent to remain abstinent from alcohol and they are
supportive. Tr. at 36, 37-38. In addition, the Individual gave away all of the alcohol that he had
in his home. Tr. at 37.
The Individual has not found abstaining from alcohol to be difficult. Tr. at 36-37. The
Individual was aware that the DOE psychologist recommended only three months of abstinence,
followed by moderate drinking, but he did not resume drinking after three months because he felt
good and had no desire to drink. Tr. at 44. He stated that he also wanted to demonstrate that he
could control his drinking, and could do so for a longer period than was asked of him. Tr. at 84.
He indicated that in the nearly six months that he has been abstinent, there have been two
occasions on which he considered resuming drinking. Tr. at 35-36. He stated that they were not
physical cravings, but rather were social occasions with his friends in which he would have
consumed alcohol in the past. Tr. at 35, 38-39, 51. He stated that he discussed with a close
friend whether he wanted to resume drinking and ultimately decided to remain abstinent for the
time being. Tr. at 39. The Individual has not ruled out the possibility of resuming drinking
alcohol in the future. Tr. at 40-41. However, he stated that, if he eventually decides to resume
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drinking, he intends to drink “in moderation” and “be responsible.” Tr. at 40-41. The Individual
added that he has professional ambitions and wants to “better himself,” and knows that drinking
to excess will not help him in that regard. Id.
The Individual’s cousin and long-time friend both corroborated the Individual’s testimony that
he has been abstinent from alcohol since May 2012. Tr. at 11, 23. Since May 2012, the
Individual’s cousin has observed the Individual abstain from alcohol in situations where he used
to drink. Tr. at 11-12. They each testified that the Individual is very reliable, and that he follows
through when he makes a decision. Tr. at 13-14, 26. Both the Individual’s cousin and his friend
believe, based on conversations with the Individual and their own observations, that the
Individual intends to remain abstinent from alcohol. Tr. at 13, 24-25
2. Expert Testimony
After listening to the hearing testimony, the DOE psychologist did not change his opinion that
the Individual had been a user of alcohol habitually to excess. Tr. at 54. He further testified that
he generally recommends at least six months of abstinence, but he recommended three months of
abstinence in his May 2012 report “because of the low level or moderate level of intoxication”
the Individual had had in the past. Tr. at 55. However, the DOE psychologist testified that, as of
the hearing, he did not believe that the Individual had demonstrated adequate evidence of
rehabilitation or reformation, despite the fact that the Individual had been abstinent from alcohol
for approximately five and one-half months, longer than the three months of abstinence that the
DOE psychologist originally recommended. Tr. at 54-55. At the hearing, the DOE psychologist
recommended that the Individual establish an additional six months of abstinence from the date
of the hearing in order to demonstrate adequate evidence of rehabilitation or reformation. Tr. at
59. He based his changed recommendation on two factors. First, he was troubled that the
Individual did not resume drinking alcohol in moderation after his three months of abstinence,
despite the DOE psychologist’s recommendation that he do so. Tr. at 55-56, 81. According to
the DOE psychologist, because the Individual did not resume drinking alcohol after three months
of abstinence, there is no evidence that the Individual is capable of controlling his drinking. Tr.
at 66. Therefore, the DOE psychologist was not confident that the Individual can be a
responsible drinker in the future. Tr. at 62, 69. Second, the DOE psychologist became
concerned at the hearing by what he referred to as the Individual’s “cravings” for alcohol – the
two social events about which the Individual testified where he considered resuming drinking.
Tr. at 56. According to the DOE psychologist, those two incidents may indicate that the
Individual has a greater need for alcohol than was first apparent. Tr. at 56-57.
Despite his testimony that the Individual has not demonstrated adequate evidence of
rehabilitation or reformation, the DOE psychologist testified that the Individual does not have the
“risk factors” associated with a relapse into problem drinking. Tr. at 61. When asked how likely
it is that the Individual will resume drinking to excess, the DOE psychologist testified that the
likelihood was “relatively low” in the next six months, and “something close to low” thereafter.
Tr. at 63, 70. In addition, despite having earlier characterized the two social occasions on which
the Individual considered resuming drinking as “cravings,” the DOE psychologist later testified
that he did not believe that the Individual had a “psychological dependency and therefore a
craving.” Tr. at 72. Finally, despite his earlier testimony that he was not confident that the
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Individual could control his drinking, the DOE psychologist testified that the Individual’s
“prognosis is very good that [the Individual] will not go back to frequently being intoxicated.”
Tr. at 63.
3. Hearing Officer Evaluation of Evidence
After considering the hearing testimony and evaluating the record as a whole, I find that the
Individual has mitigated the security concerns raised by his consumption of alcohol. The
Individual has developed substantial insight into the problems caused by his past use of alcohol.
He has been abstinent from alcohol for approximately five and one-half months as of the date of
the hearing, longer than the initial period of abstinence that the DOE psychologist recommended,
and has demonstrated that he is able to abstain from consuming alcohol in situations that would
have prompted him to drink in the past. In addition, the Individual made a conscious decision to
remain abstinent, despite knowing he could resume drinking alcohol after three months of
abstinence, and he intends to remain abstinent for the foreseeable future.
Moreover, evaluating the evidence in this case, I am unable to give substantial weight to the
testimony of the DOE psychologist, who vacillated in his opinion regarding whether the
Individual has demonstrated adequate evidence of rehabilitation or reformation. Based on his
indecisiveness on that issue, I remain unconvinced by the factors on which the DOE psychologist
based his changed recommendation, requiring additional abstinence from the Individual – (1)
that the Individual chose not to resume drinking after three months of abstinence and (2) that the
Individual considered resuming drinking on two social occasions but ultimately decided not to
do so.
First, I was not persuaded by the DOE psychologist’s opinion that, because the Individual did not
resume drinking in moderation after three months of abstinence, he did not prove that he can
control his drinking. To the contrary, I find that the record indicates that the Individual is well
able to control his consumption of alcohol. Specifically, the Individual made a conscious
decision not to drink even though he was aware that he was “allowed” to do so after three
months, per the recommendations that the DOE psychologist made in his May 2012 report, and
he has adhered to that decision despite having been in situations where he would have consumed
alcohol in the past. Moreover, it defies common sense to conclude that a longer period of
demonstrated abstinence is a less reliable indicator of control over one’s drinking than a shorter
period of abstinence followed by a resumption of alcohol consumption as soon as one believes
he is “allowed” to do so.
Second, the DOE psychologist did not convince me that the two times that the Individual briefly
considered whether to drink during a social occasion equated to “cravings.” The Individual
testified that he did not feel a physical urge or need to drink on those occasions. Rather, each of
those occasions was an event where he would have consumed alcohol in the past and he
considered whether or not he wanted to drink. In fact, the DOE psychologist himself later
testified that it the Individual did not have “a psychological dependency and therefore a craving”
for alcohol. Given these factors, it remains unclear why those two incidents should be
considered negative factors with respect to the Individual’s prognosis, particularly because he
ultimately decided not to drink on each of those occasions. In any event, regardless of his
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changed recommendation, the DOE psychologist ultimately opined that the Individual’s risk of
relapse was “relatively low” and that his prognosis was good. See, e.g., Personnel Security
Hearing, Case No. PSH-12-0088 (2012).
As noted above, in making a determination regarding an individual’s eligibility for access
authorization, the regulations direct me to consider a number of relevant factors. See 10 C.F.R.
§ 710.7(c). Although in cases involving mental health conditions that cause or may cause a
significant defect in an individual’s judgment and reliability OHA hearing officers generally
accord deference to the opinion of mental health professional regarding the issue of rehabilitation
and reformation, the question of whether evidence of rehabilitation and reformation is adequate
to warrant granting a security clearance is “a common-sense determination to be made by DOE
officials, including the hearing officer, not by a consultant psychologist or other outside experts.”
See Personnel Security Hearing, Case No. PSH-12-0100 (2012); Personnel Security Hearing,
Case No. TSO-1057 (2011); Personnel Security Hearing, Case No. TSO-0209 (2006) (citing
10 C.F.R. 710.7(c) (“question concerning an individual’s eligibility for access authorization” is
to be decided by “DOE officials involved in the decision-making process. . . .”)); see also
Personnel Security Hearing, Case No. TSO-0803 (2010) (hearing officer “need not accord
deference to [DOE mental health expert’s] opinion as to what level of risk is acceptable in order
to grant or restore a security clearance”). In this case, considering the entirety of the record
before me, it is my common-sense judgment that the Individual no longer consumes alcohol and
is unlikely to relapse into problem drinking in the future. Accordingly, I conclude that he has
demonstrated adequate evidence of rehabilitation and reformation and, therefore, has mitigated
the Criteria H and J concerns cited in the Notification Letter. See, e.g., Personnel Security
Hearing, Case No. TSO-0853 (2010); Personnel Security Hearing, Case No. TSO-0559 (2007);
Personnel Security Hearing, Case No. TSO-0064 (2003).
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the Individual’s eligibility for a security clearance under Criteria H and J of the
Part 710 regulations. I also find that the Individual has presented sufficient information to fully
resolve those concerns. Therefore, I conclude that granting the Individual DOE 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). Accordingly, I find that the DOE
should grant the Individual access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Diane DeMoura
Hearing Officer
Office of Hearings and Appeals
Date: November 16, 2012