PSH-12-0126

* 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: November 1, 2012 )
) Case No.: PSH-12-0126
__________________________________________)
Issued : February 1, 2013
______________________
Hearing Officer Decision
______________________
Wade M. Boswell, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXX (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 not be restored at this time.
I. Background
The individual is employed by a DOE contractor in a position that requires him to hold a
DOE security clearance. As a participant in the Human Reliability Program (HRP), 10
C.F.R. Part 712, the individual is subject to random breath alcohol tests (BATs). When
the individual reported to work for his regularly scheduled afternoon shift on Monday,
June 18, 2012, he was advised to report for a BAT. He tested positive on the BAT and, as
a result, he was suspended by his employer. Subsequent to his return to work, the Local
Security Office (LSO) conducted a personnel security interview (PSI) with the individual
on July 25, 2012. See Exhibit 10. As a result of the positive BAT and concerns raised
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
during the PSI, the individual was referred for evaluation by a DOE consulting
psychologist, who submitted a psychological assessment dated September 12, 2012. See
Exhibit 7.
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
an October 4, 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 criteria 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 See Exhibit 1.
Upon his receipt of the Notification Letter, the individual exercised his right under the
Part 710 regulations by requesting an administrative review hearing. See Exhibit 2. 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 11 numbered exhibits into the record and presented the
testimony of one witness, the DOE consulting psychologist. The individual introduced
four lettered exhibits (Exhibits A-D) into the record and presented the testimony of four
witnesses, including that of himself and that of a licensed psychologist who participated
in his alcohol treatment program. 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 suspending 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. With respect to Criterion H, the LSO relied on the
September 12, 2012, report of the DOE psychologist which concluded that the individual
has consumed alcohol to intoxication very frequently and this causes and could cause
significant defects in the individual’s judgment and reliability. Ex. 1 and Ex. 7 at 6.
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
Guideline G; Personnel Security Hearing, Case No. PSH-11-0035 (April 19, 2012). With
respect to Criterion J, the LSO noted that (1) the individual tested positive on a random
BAT on June 18, 2012, (2) the individual reported consuming approximately 18 12-ounce
4
beers every weekend from August 2009 to July 2012 and becoming intoxicated almost
weekly, and (3) the individual was arrested and charged with driving while intoxicated in
September 1992. Additionally, the LSO relied on the September 12, 2012, report of the
DOE psychologist which concluded that the individual has been and, until three months
prior to the psychological assessment, continued to be an user of alcohol habitually to
excess, without adequate evidence of rehabilitation or reformation. Ex. 1 and Ex. 7 at 5.
In light of the information available to the LSO, the LSO properly invoked Criterion H
and Criterion 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 not be restored at this time. I cannot find that restoring the
individual’s DOE 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.
The individual’s alcohol consumption was always limited to beer, which he began
drinking when he was 18 years old. Tr. at 66; Ex. 10 at 84. Since his mid-20’s, he has
consumed sufficient quantities of alcohol to result in his intoxication at least once a
month. The individual’s alcohol consumption increased approximately three years ago
following a divorce and, until his positive BAT, he was generally drinking an 18-pack of
beer every weekend which resulted in him becoming legally intoxicated at least once a
week. Ex. 7 at 3 – 4; Tr. at 55.
Notwithstanding his typical weekend alcohol consumption, the individual reported that
he always made sure to abstain from alcohol consumption for at least eight hours prior to
reporting to work as required by the HRP rules at his facility. Id. at 53. On June 17, 2012,
the individual hosted a Father’s Day cookout at his home and consumed beer from early
evening through one o’clock the following morning. When the individual reported to
work for his normal shift on Monday afternoon, he was selected for a random BAT on
which he tested positive with a blood alcohol content (BAC) of .05 g/210L. Ex. 7 at 3;
Ex. 10. Based on the result of the BAT and the individual’s report of having stopped
drinking at 1 a.m., the DOE psychologist calculated that the individual’s BAC had likely
reached .34. Ex. 7 at 3 – 4. The DOE psychologist testified that most people would be
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
unconscious at that level of intoxication and that the individual’s severe alcohol
consumption over a sustained period had resulted in his body’s ability to tolerate that
level of alcohol. Tr. at 73 – 74.
This was the first positive BAT the individual had had in his 18 years at the DOE
contractor’s facility. His supervisor confirmed that the individual had had no positive
BATs during the 16 years of his supervision. Id. at 44 – 46.
Within a few days of the positive BAT, the individual decided to abstain from all alcohol.
As of the date of the hearing, the individual had been abstinent from alcohol for 180 days.
Id. at 57. Upon the suggestion of medical personnel at the facility and of a co-worker, the
individual entered an intensive outpatient program (IOP) for alcohol treatment in July
2012, completing the program on September 4, 2012. Id. at 54; Ex. A.
A psychologist who participated in his treatment at the IOP testified that the individual
participated fully in the program and has consistently participated in aftercare subsequent
to completing the program, attending both group meetings and sessions with an
individual therapist. Tr. at 18 – 19. The IOP psychologist testified that their initial
assessment of the individual was that he lacked understanding and education of the
impact of alcohol and of the tolerance for alcohol that his body had developed. Id. at 22.
She testified that the individual “corrects … behavior as soon as he’s given the
information to do so.” Id. She believes his prognosis is good and opined that if he
continues his program and current abstinence he will demonstrate adequate rehabilitation
and reformation as of March 4, 2013, which is six months following his completion of
the IOP.5 Id. at 22, 31.
The DOE psychologist evaluated the individual on September 10, 2012, shortly after the
individual had completed the IOP. Ex. 7. As a result of the evaluation, the DOE
psychologist concluded that the individual did not meet the criteria for any of the alcohol
disorders defined in the Diagnostic Statistical Manual of the American Psychiatric
Association IVth Edition TR (DSM-IV-TR); however, based on the individual’s historic
pattern of alcohol consumption, the DOE psychologist diagnosed the individual as, until
three months prior to the evaluation, a user of alcohol habitually to excess which was a
condition that causes or could cause significant defects in his judgment and reliability.6
Tr. at 82; Ex. 7 at 5 – 6. In his report, the DOE psychologist stated that the individual had
demonstrated control over his drinking for only three months and opined that in order to
demonstrate adequate rehabilitation and reformation of his condition the individual
needed to participate in IOP aftercare and demonstrate responsible drinking (i.e., not to
intoxication) for the six-month period following the psychological evaluation (i.e., until
March 10, 2013). Id.
5 Earlier in her testimony, the IOP psychologist testified that the individual had demonstrated “reformation”
with respect to alcohol usage. Tr. at 24.
6 The IOP psychologist testified that the individual had been given a “working diagnosis” of Alcohol Abuse
at her facility. On questioning, she acknowledged that the individual did not meet the criteria for Alcohol
Abuse under the DSM-IV-TR, but that their program required a DSM diagnosis in order for someone to
participate in their program. Tr. at 29 – 30.
6
After listening to all of the testimony at the hearing, the DOE psychologist testified that
education and the passage of time are important with alcohol conditions. Tr. at 77. He
noted that the individual had exceeded the psychologist’s original recommendations by
abstaining from alcohol consumption (as opposed to consuming alcohol in a responsible
manner). Id. at 80. He felt the individual was “a man who strives for … absolute honesty”
and could be believed when he said he intended not to drink again. Id. at 79, 84. The
psychologist testified that the individual’s prognosis was very good, with a low
probability of relapse. Id. at 79. Notwithstanding the progress demonstrated by the
individual, the DOE psychologist testified that he wanted the individual to get through
the end of the year holidays and complete the six-month period of continued abstinence
or responsible alcohol use as originally recommended in the DOE psychologist’s report.
Id. at 79 – 80, 84; Ex. 7.
The individual does not contest the accuracy of the charges set forth in the Notification
Letter but advocates that he has demonstrated adequate rehabilitation and reformation
with respect to his use of alcohol and has, therefore, mitigated the concerns. Tr. at 8. As
noted above, the individual had abstained from alcohol use for 180 days as of the date of
the hearing. He also testified that, notwithstanding the assessment of the DOE
psychologist that the individual could continue to consume alcohol if he did so in a
responsible manner, he intends to abstain from all alcohol consumption in the future. Id.
at 57.
Hearing Officers customarily accord deference to the opinions of mental health
professionals with respect to security concerns under Criterion H and Criterion J. With
respect to demonstrating adequate rehabilitation and reformation, the IOP psychologist
testified that the individual would need to successfully continue his aftercare until March
4, 2013, and the DOE psychologist testified that the individual would need to
successfully continue his IOP aftercare and demonstrate responsible use of alcohol (or
abstinence) until March 10, 2013. These professional opinions are remarkably consistent.
Both mental health professionals expressed that as of the date of the hearing the
individual had met all of their requirements, except time.
Although I believe the individual is to be commended for his abstinence from alcohol and
embracing a recovery program, I cannot find, based on the foregoing, that the individual
has mitigated the security concerns associated with Criterion H and Criterion J at this
time.
V. 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 not 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
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should not be restored at this time. 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: February 1, 2013