PSH-12-0113

* 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 28, 2012 )
) Case No.: PSH-12-0113
)
__________________________________________)
Issued: December 18, 2012
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Hearing Officer Decision
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Steven L. Fine, Hearing Officer:
This Decision concerns the eligibility of XXXXX (hereinafter referred to as “the Individual”) to
hold a security clearance 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 conclude
that the Individual’s security clearance should not be granted.
I. BACKGROUND
The Individual is an applicant for a DOE security clearance. During a background investigation,
the Local Security Office (LSO) learned that the Individual had been arrested on alcohol-related
charges. Subsequently, the LSO referred the Individual for a forensic psychological evaluation.
Unable to resolve the derogatory information, the LSO issued a Notification Letter to the
Individual. See 10 C.F.R. § 710.21. The letter informed the Individual that information in the
possession of the DOE created a substantial doubt concerning his eligibility for a security
clearance. Specifically, the LSO stated that the Individual had been found to habitually use
alcohol to excess and that the Individual had engaged in certain behavior which brought into
question his honesty, reliability, and trustworthiness. This conduct comes within the purview of
two potentially disqualifying criteria, Criterion J and Criterion L.1
1 Specifically, the Notification Letter alleges that the Individual has: (1) “[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 J); and (2) “[e]ngaged in any unusual conduct or is
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The Notification Letter informed the Individual that he was entitled to a hearing before a Hearing
Officer in order to resolve the substantial doubt regarding his eligibility for a security clearance.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as the Hearing Officer in
this matter.
At the hearing I convened pursuant to 10 C.F.R. § 710.25(e) and (g), I took testimony from the
Individual, and a DOE consultant psychologist (the Psychologist). See Transcript of Hearing,
Case No. PSH-12-0113 (hereinafter cited as “Tr.”). The LSO submitted nine exhibits, marked as
Exhibits one through nine, while the Individual submitted five exhibits, marked as Exhibits A
through E.
II. FINDINGS OF FACT
The Individual has been arrested twice since 1996 for alcohol-related incidents. On August 2,
1996, police charged him with Interfering with a Police Officer. Exhibit 6 at 1. He admitted to
consuming two shots and two beers over two hours prior to this incident. Exhibit 9 at 40. On
April 4, 2002, police arrested and charged him with Driving Under the Influence (DUI). Exhibit
9 at 10-34. He admitted drinking eight or nine rum and cokes prior to the incident. Id. His
breath alcohol content registered .20. Id.
At the request of the LSO, the Psychologist evaluated the Individual on May 30, 2012. The
Psychologist reviewed selected portions of the Individual’s personnel security file, administered
a battery of standardized psychological tests to the Individual, and interviewed the Individual.
Exhibit 4 at 1. After completing her evaluation of the Individual, the Psychologist issued a
report on May 30, 2012, in which she specifically found that the Individual did not meet the
criteria for a mental illness or mental condition set forth in the Diagnostic and Statistical Manual
of Mental Disorders, Fourth Edition-Text Revised (DSM-IV-TR.)2 Exhibit 4 at 6, 9. However,
the Psychologist found that the Individual was habitually using alcohol to excess. She based this
finding on the information provided by the Individual. Specifically, the Individual informed her
that he was consuming six to eight drinks a night, once or twice a week. Id. at 2-3. He told her
that he intended to continue this pattern of alcohol consumption in the future. Id. The
Psychologist concluded, on the basis of her review of the Individual’s Personnel Security File,
the clinical interview, and psychological testing, that the Individual has used alcohol excessively
in the past and continues to do so. Id. at 8. She noted that the Individual drinks to a level of
intoxication, which makes him feel “fuzzy" by having six to eight drinks over four to seven
hours, once or twice a week. Id. She found that “his alcohol use does not seem to have
negatively impacted any aspect of his life, including his relationships, employment, and military
service.” Id. at 9. The Psychologist opined that in order to be reformed or rehabilitated from his
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,” 10 C.F.R. § 710.8(l)
(Criterion L).
2 A copy of this Report appears in the record as Exhibit 9.
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excessive alcohol use, he would need to reduce his alcohol consumption, to within NIH
guidelines (less than four drinks per evening). Id.
III. STANDARD OF REVIEW
The Hearing Officer's role in this proceeding is to evaluate the evidence presented by the agency
and the Individual, and to render a decision based on that evidence. See 10 C.F.R. § 710.27(a).
The regulations state that “[t]he decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all the relevant information, favorable or
unfavorable, as to whether the granting of 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). In rendering this opinion, I have considered the following factors: the nature, extent,
and seriousness of the conduct; the circumstances surrounding the conduct, including
knowledgeable participation; the frequency and recency of the conduct; the Individual's age and
maturity at the time of the conduct; the voluntariness of the Individual's 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. See 10 C.F.R.
§ § 710.7(c), 710.27(a). The discussion below reflects my application of these factors to the
testimony and exhibits presented by both sides in this case.
IV. ANALYSIS
A. Criterion J
The Individual’s two alcohol-related arrests and his pattern of excessive alcohol consumption is
a security concern because his alcohol use might lead to the exercise of questionable judgment or
the failure to control impulses, or negatively impact his reliability and trustworthiness. 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) at ¶ 21
The security concerns raised under Criterion J by the Individual’s continuing pattern of
habitually excessive alcohol use have not been resolved. The phrase “user of alcohol habitually
to excess” is not set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision as a formal psychiatric diagnosis, nor is it defined in the Part 710
regulations. However, OHA Hearing Officers have addressed the application of this phrase in
numerous Decisions, and have defined it as properly applying to individuals who drink to
intoxication as a customary practice or pattern. See, e.g., Personnel Security Hearing, Case No.
TSO-0793 (2009); Personnel Security Hearing, Case No. TSO-0738 (2009); Personnel Security
Hearing, Case No. TSO-0453 (2007).3
At the hearing, the Individual testified that he believes that his present level of alcohol
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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consumption is reasonable and does not constitute a threat to national security and the common
defense. However, the facts in this case, in my view, speak otherwise. The Individual’s pattern
of drinking six to eight drinks a night, once or twice a week, falls squarely within the range of
consumption that OHA Hearing Officers have found to constitute habitual use to excess. See,
e.g., Personnel Security Hearing, Case No. VSO-0569 (2002) (drinking to intoxication once per
month found to be habitual use to excess); Personnel Security Hearing, Case No. TSO-0086
(2004) (drinking to intoxication three times per week found to be habitual use to excess);
Personnel Security Hearing, Case No. TSO-0393 (2006) (binge drinking all night on weekends
once every two or three months found to constitute habitual use to excess); Personnel Security
Hearing, Case No. TSO-0453 (2007) (drinking to intoxication once or twice per month found to
be habitual use to excess); Personnel Security Hearing, Case No. TSO-0424 (2006) (intoxication
12 times per year between 1994 and 1998, 12 times in 2001, 18 times total in 2002 and 2003, 12
times in 2004 and 10 times in 2005 found to constitute habitual use to excess); Personnel
Security Hearing, Case No. TSO-0738 (2009) (intoxication twice per month between 1998 and
2002 and every night between 2002 and 2007 found to be habitual use to excess). The record in
this case indicates that the Individual drinks to intoxication as a customary practice or pattern.
Consequently, I find that the Individual is a user of alcohol habitually to excess. An adjudication
of an individual’s eligibility for a security clearance is, in essence, a risk assessment. Every time
an individual with a DOE security clearance drinks to the point of intoxication, they risk
compromising national security. If an individual becomes intoxicated often enough, then the
cumulative risk becomes unacceptable. Because the Individual continues to engage in heavy
drinking on a weekly basis, I find that he has not sufficiently mitigated the security concerns
raised under either Criterion J.
C. Criterion L
The Individual’s two arrests constitute criminal conduct which raises security concerns under
Criterion L. “Conduct involving questionable judgment, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual's
reliability, trustworthiness and ability to protect classified information.” Adjudicative Guidelines
at ¶ 15. “Criminal activity creates doubt about a person's judgment, reliability and
trustworthiness. By its very nature, it calls into question a person's ability or willingness to
comply with laws, rules and regulations.” Id. at ¶ 30.
While the criminal conduct cited in the Notification Letter occurred over ten years ago, I find
that the security concerns raised by the Individual’s two alcohol-related arrests cannot be
resolved by the passage of time alone. The Individual continues to habitually use alcohol to
excess. Given the role that alcohol has played in the Individual’s past conduct, combined with
the fact that the Individual continues to drink alcohol habitually to excess, I am not convinced
that the underlying conduct will not recur. In the end, the continuing habitual consumption of
alcohol still raises concerns about the Individual’s judgment, reliability and trustworthiness.
Accordingly, I find that the security concerns raised under Criterion L by the Individual’s two
arrests have not been resolved.
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V. CONCLUSION
For the reasons set forth above, I conclude that the LSO properly invoked Criteria J and L. I find
that the Individual has not mitigated the security concerns under Criteria J and L. Accordingly,
the Individual has not demonstrated that granting his security clearance would not endanger the
common defense and would be clearly consistent with the national interest. Therefore, I find that
the Individual's security clearance should not be granted 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.
Steven L. Fine
Hearing Officer
Office of Hearings and Appeals
Date: December 18, 2012