PSH-13-0006

, * 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: January 10, 2013 ) Case No.: PSH-13-0006
)
___________________________________ )
Issued: April 19, 2013
______________________
Hearing Officer Decision
______________________
Steven J. Goering, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXX (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 DOE should not grant the
individual access authorization at this time.
I. BACKGROUND
The individual is an employee of a DOE contractor and is an applicant for access authorization. On
July 5, 2012, the individual was arrested and charged with Aggravated Driving While Intoxicated
(DWI). Exhibit 8. Because of the concern this arrest raised, a Local Security Office (LSO)
summoned the individual for an interview (PSI) with a personnel security specialist on July 10,
2012. Exhibit 12 (PSI Transcript). After the PSI, the LSO referred the individual to a local
psychologist (hereinafter referred to as “the DOE Psychologist”) for an agency-sponsored
evaluation. The DOE Psychologist prepared a written report, setting forth the results of that
evaluation, and sent it to the LSO. Exhibit 6 (Psychological Assessment). Based on this report and
the rest of the individual’s personnel security file, the LSO determined that derogatory information
existed that cast into doubt the individual’s eligibility for access authorization. Exhibit 3 (Case
Evaluation Sheet). The LSO informed the individual of this determination in a letter that set forth the
1 An 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 be referred to in this Decision as access
authorization or a security clearance.
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DOE’s security concerns and the reasons for those concerns. Exhibit 1. 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 in this matter. The LSO forwarded this request to OHA, and I
was appointed the Hearing Officer. The DOE introduced 18 exhibits into the record of this
proceeding and presented the testimony of the DOE Psychologist. The individual introduced ten
exhibits and presented the testimony of three witnesses, in addition to his own testimony.
II. 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 and
unfavorable, that has a bearing on the question of whether granting the individual 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). 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).
III. FINDINGS OF FACT AND ASSOCIATED SECURITY CONCERNS
The Notification Letter cited derogatory information within the purview of three potentially
disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsections (h), (j),
and (l) (hereinafter referred to as Criteria H, J, and L, respectively). Exhibit 1.2 Under Criterion H,
the LSO cited the report of the DOE Psychologist, in which he identified in the individual a “lack of
effective thoughtful control over his spending and use of alcohol,” and concluded that this was “a
2 Criterion H defines as derogatory information indicating that the individual has an “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). Under Criterion J, information is derogatory if it indicates that
the 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(j). Criterion
L defines as derogatory information indicating that the individual has “[e]ngaged in any unusual conduct or is 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).
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mental condition that results in a high likelihood that he will continue to have significant defects in
his judgment and reliability.” Exhibit 6 at 11. Under Criterion J, the Notification Letter cited the
same conclusion of the DOE psychologist, as well as the psychologist’s statement that the individual
“participated in a three-day binge drinking spree in July 2012, after six years of abstinence from
alcohol, which warrants concern for [the individual] acting without reflection for ramifications.”
Exhibit 1 (citing Exhibit 6 at 3-6, 10-11). Also under Criterion J, the LSO cited the individual
involved with five alcohol-related incidents with law enforcement, and listed the following:
 a July 5, 2012, arrest and charge of Aggravated Driving While Intoxicated (DWI), Careless
Driving, and No Driver’s License, at which time the individual’s breath alcohol content was
measured at .20 and .19;
 a January 7, 1995, arrest and charge of Driving Under the Influence and Driving Without
Privileges, at which time the individual’s breath alcohol content was measured at .13 and
.12;
 an October 14, 1994, arrest and charge of Illegal Liquor Consumption and Malicious Injury
to Public Property, and the individual’s admission in his PSI that he was intoxicated at the
time of this arrest;
 an August 19, 1993, arrest and charge of Minor in Consumption; and
 a February 17, 1993, arrest and charge of Illegal Consumption.
Exhibit 1.3
Under Criterion L, the Notification Letter cited the five alcohol-related arrests listed above, and also
listed the following:
 a February 24, 2006, charge of Injury to Child;
 an April 14, 2000, citation for Speeding;
 a February 10, 1999, citation for Failure to Obey Traffic Device; and
 a September 19, 1992 citation for Failure to Stop/Yield.4
3 The Notification Letter contains allegations under Criterion J, citing the DOE psychologist’s report, regarding
the quantity of alcohol the individual consumed during three days in July 2012, prior to his DWI arrest. However, there
are discrepancies in this regard between the information in the Notification Letter and that in the DOE psychologist’s
report. Based upon the record, and the individual’s hearing testimony on this point, I find it most likely that the
individual consumed six beer on July 3rd, 10 beers and half of a fifth of vodka on July 4th, and at least several beers and a
fifth of vodka on July 5th. See Tr. at 50.
4 A typographical error in the Notification Letter listed the year of this charge as 1999. See Hearing Transcript
(Tr.) at 37.
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Also under Criterion L, the LSO cited the individual’s filing of a Chapter 7 bankruptcy petition on
September 12, 2003, prior to which he had accumulated debts of approximately $50,000 to $80,000;
his accumulation of new debt since his 2003 bankruptcy, including approximately 121 unpaid
collection accounts totaling $20,000 to $30,000 past due, $75,000 in student loans, and $50,000
loaned to him by his parents; his 2011 consultation with a bankruptcy attorney, though not having
taken action to file for bankruptcy since that time; and statements by the individual that he has not
made any attempt to repay his debts, does not know how he would repay them, and has no intent to
do so.
The individual submitted, as an exhibit, documentation showing total student loan debt of
$59,140.39. Other than this, the individual has not disputed any of the allegations set forth in the
Notification Letter, Tr. at 14-15, and, with the exception of the amount of student loan debt and the
other clarifications to the allegations discussed above, see supra notes 3 and 4, I find that the
allegations are supported by the evidence in the record, and are therefore valid. See 10 C.F.R.
§ 710.27(c) (requiring that Hearing Officer “make specific findings based upon the record as to the
validity of each of the allegations” in the Notification Letter).
I further find that the allegations in the Notification Letter adequately justify the DOE’s invocation
of Criteria H, J, and L, and raise significant security concerns. First, regarding the concern under
Criterion J, the excessive use of alcohol often leads to the exercise of questionable judgment or the
failure to control impulses, and calls into question the individual’s future reliability and
trustworthiness. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information (Adjudicative Guidelines), The White House (December 19, 2005) at ¶ 21.5
Under Criterion L, the undisputed criminal charges against the individual cited in the Notification
Letter create doubt about his judgment, reliability and trustworthiness, as they call into question his
ability or willingness to comply with laws, rules and regulations. Id. at ¶ 30. Also of concern under
Criterion L, the failure or inability to live within one's means, satisfy debts, and meet financial
obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and
regulations, all of which can raise questions about an individual's reliability, trustworthiness and
ability to protect classified information. Moreover, an individual who is financially overextended is
at risk of having to engage in illegal acts to generate funds. Id. at ¶ 18.
As for Criterion H, certain emotional, mental, and personality conditions can impair judgment,
reliability, or trustworthiness. Id. at ¶ 27. In the present case, unlike in most prior cases of this
office applying Criterion H, see, e.g., Personnel Security Hearing, Case No. PSH-12-0077 (2012),
the DOE Psychologist has not concluded that the individual meets the criteria for a specific disorder
set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th
edition, Text Revision (DSM).
5 In addition to the specific allegations cited in the Notification Letter, I note that the DOE psychologist found in
his report that the individual “has been diagnosed with Alcohol Abuse (305.00) for the years from 1993 through 2005
(ages 17 through 30).” Exhibit 6 at 11. Further, in his PSI, the individual acknowledged that, from age 17 to 21, he
consumed alcohol two to three times per week, each time drinking six to twelve beers, and admitted that this was enough
alcohol to render him intoxicated on each occasion. Exhibit 12 at 247-49; see 10 C.F.R. § 710.8(j) (including as
derogatory information that an individual has been a user of alcohol habitually to excess or has been diagnosed as
suffering from alcohol abuse).
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However, the text of Criterion H does not require a formal diagnosis of a disorder under the DSM,
but rather a finding by a psychiatrist or licensed clinical psychologist of a “mental condition” that
“causes or may cause a significant defect in judgment or reliability.” 10 C.F.R. § 710.8(h); see also
Adjudicative Guidelines at ¶ 27 (formal diagnosis of a disorder is not required for there to be a
concern under this guideline). The DOE Psychologist, whose expertise in not in dispute, see Tr. at
150, has made such a finding in this case. Exhibit 6 at 11.
In his hearing testimony, the DOE Psychologist described his understanding of the phrase “mental
condition” as an “enduring mental tendency, that is a subcomponent of one of the other mental
conditions.” Tr. at 141. He stated that there is a consensus regarding the meaning of that term
more commonly seen among forensic psychologists and psychiatrists; that is, those
of us that have to produce diagnoses within a legal framework.
It is commonly seen among psychologists or psychiatrists when you have a
diagnostic conference and you're talking about the diagnostic understanding of a
particular person, you will say that this resembles an impulse disorder except for
these reasons, but this is the way it does resemble -- his behavior does resemble an
impulse disorder, and so we use the diagnostic phrase of mental condition in that
situation, and that's common.
Id. at 142-43.
Taking into account this testimony, and prior OHA decisions where Criterion H concerns have been
found justified by expert findings of mental conditions in the absence of a current diagnosis of a
disorder under the DSM, I conclude that the opinion of the DOE Psychologist in this case raises
valid security concerns under Criterion H. See, e.g., Personnel Security Hearing, Case No. PSH-12-
0136 (2013) (enduring tendencies of poor judgment and reliability); Personnel Security Hearing,
Case No. TSO-0626 (2008) (psychological trauma associated with two sexual assaults); Personnel
Security Hearing, Case No. TSO-0301 (2006) (significant lapses in judgment, possibly caused by
head injury); Personnel Security Hearing, Case No. TSO-0191 (2006) (“Occupational Problem,”
described as “not a mental illness or psychiatric disorder per se,” but “a condition that is a focus of
clinical attention”).
IV. ANALYSIS
A. Criterion J
The Adjudicative Guidelines list the following four conditions that could mitigate concerns raised by
excessive alcohol consumption.
(a) 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;
(b) 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
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pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser);
(c) the individual is a current employee who is participating in a counseling or
treatment program, has no history of previous treatment and relapse, and is making
satisfactory progress;
(d) 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 at ¶ 23.
Two of these conditions refer to either participation or successful completion of treatment. Id. at ¶
23(c), 23 (d). In the present case, the individual has not participated in an alcohol treatment program
Tr. at 28, 34, 75. Thus, neither of these conditions would apply in this case.
Regarding the second condition listed, Adjudicative Guidelines at ¶ 23(b), I cannot find that the
individual has clearly acknowledged his issues related to alcohol use. On the one hand, the
individual testified that he had “kind of realized that I'm possibly one of those drinkers that should
not go anywhere near it.” Id. at 15. On the other hand, he also stated that he does not “feel that I
have a problem with alcohol. I know I've had some -- I've had some issues in the past, you know, it's
obvious, it's in the -- it's in the record, but -- but since the July incident, I have not touched a drop of
alcohol, . . . .” Id. However, aside from his abstinence since July 2012, the individual has provided
no evidence of actions taken to overcome any problem he has with alcohol.
Further, it would be difficult to find here that the individual has established a sufficient pattern of
abstinence or responsible use. Given that the individual stopped drinking for approximately six
years before his three-day binge in July 2012, eight months of sobriety unaccompanied by a
treatment program is insufficient, in my opinion, to find unlikely a recurrence of his problematic
behavior, and such behavior certainly casts doubt on the individual's current reliability,
trustworthiness, or good judgment. Adjudicative Guidelines at 23(a).6 Considering all of the
relevant factors in the Part 708 regulations, 10 C.F.R. § 710.7(c), and the Adjudicative Guidelines¸ I
cannot find that the concerns raised by the individual’s past use of alcohol have been sufficiently
resolved in the present case.
B. Criterion L
Regarding the criminal charges cited in the Notification Letter under Criterion L, I note that the
majority of these charges are related to the individual’s use of alcohol. While four of the five
6 Also relevant to the risk of relapse is the fact that the individual is currently serving a one-year probation,
beginning on December 13, 2012, as a result of his conviction on the July 2012 DWI charge, during which time he is
prohibited from consuming alcohol. Exhibit 7 at 13. Thus, until the individual is no longer under threat of punishment, it
will be more difficult to determine whether he will be able to maintain his sobriety.
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alcohol-related criminal charges occurred from 1993 to 1995, and would logically be mitigated
significantly by the passage of time, I consider these incidents to be a product of the individual’s
problematic and still unresolved relationship with alcohol. In this sense, for the reasons discussed in
the previous section of this decision, there remains a concern related to these criminal charges.
As for the four other criminal charges, occurring in 1992, 1999, 2000, and 2006, I find the concerns
raised by the first three to be sufficiently mitigated by time, taking into account, as well, the
relatively minor nature of the offenses (speeding, failure to obey traffic device, failure to stop/yield).
Regarding the 2006 charge of Injury to Child, the record indicates that this charge stemmed from an
occasion when his child, then seven years old, had been left unattended at home. Tr. at 89; Exhibit
13 at 95-96 (Office of Personnel Management report of contemporaneous records reviewed during a
background investigation of the individual). The record indicates that the individual told a police
officer that he intended for the child to be alone a little over 20 minutes, after he left for work, based
on his understanding of when his wife was to get off of work that day. While leaving a child of
seven unsupervised for even 20 minutes suggests a serious lapse of judgment, I note that there is no
evidence of any other such incident in the record. Under these circumstances, I find that the concern
raised by this event is sufficiently mitigated by its isolated nature and by the passage of seven years
since it took place. See Adjudicative Guidelines at ¶ 32(a).
In contrast to the criminal charges cited in the Notification Letter, the individual’s handling of
finances presents a chronic pattern of questionable judgment and reliability over many years. The
individual has essentially taken no action to resolve his indebtedness, with the exception of filing for
bankruptcy in 2003, after which he simply accumulated more debt, which he has to date made no
significant attempt to repay. See, e.g., Tr. at 67 (“Q. Do you plan to repay them? Do you think you
ever will? A. I will definitely make an attempt to try, but I'm not sure if I will be able to.”). As such,
none of the possible mitigating factors listed in the Adjudicative Guidelines are applicable in this
case. See Adjudicative Guidelines at ¶ 20.7
Finally, in prior cases involving financial irresponsibility, Hearing Officers have held that “[o]nce an
individual has demonstrated a pattern of financial irresponsibility, he or she must demonstrate a new,
sustained pattern of financial responsibility for a period of time that is sufficient to demonstrate that
a recurrence of the past pattern is unlikely.” See e.g., Personnel Security Hearing, Case No. PSH-12-
0134 (2013); Personnel Security Hearing, Case No. PSH-12-0058 (2012); Personnel Security
Hearing, Case No. PSH-11-0015 (2011); Personnel Security Hearing, Case No. TSO-1078 (2011);
Personnel Security Hearing, Case No. TSO-1048 (2011); Personnel Security Hearing, Case No.
TSO-0878 (2010). It is clearly too early for me to make such a finding in the present case.
For all of the reasons set forth above, I cannot find that the individual has resolved the concerns in
this case under Criterion L, including those related to his criminal charges stemming from his use of
alcohol and the concerns raised by his longstanding pattern of financial irresponsibility.
7 Some of the debt accumulated by the individual appears to have resulted from medical expenses incurred due
to complications from a surgical procedure undergone by his wife. See Adjudicative Guidelines at ¶ 20(b) (concerning
financial circumstances largely beyond the individual’s control, such as an unexpected medical emergency). However,
the record is clear that the individual’s pattern of financial issues significantly predates the surgery, which took place in
2008. Tr. at 54, 70. Moreover, though complications from surgery cannot necessarily be anticipated, the surgery itself, a
“tummy tuck,” was a wholly elective procedure. Id. at 42-43. Given the individual’s financial indebtedness at the time,
the choice to have this surgery is emblematic of the individual’s history of poor judgment with regard to finances. Id.
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C. Criterion H
I address Criterion H last in this case, as the relevant finding of the DOE psychologist, the
individual’s “lack of effective thoughtful control over his spending and use of alcohol,” Exhibit 6
at 11, essentially reemphasizes the most problematic behaviors of the individual already discussed
above. Given a psychologist’s expertise in understanding human behavior, it is particularly
significant that the DOE psychologist found, at the time of his report, a “high likelihood” that the
individual “will continue to have significant defects in his judgment and reliability.” Id.
Furthermore, it is clear from the record, including the hearing testimony of the DOE psychologist,
that none of the mitigating conditions in the Adjudicative Guidelines relevant to psychological
conditions would apply in the present case. Adjudicative Guidelines at ¶ 29; Tr. at 144-47. Most
notably lacking is the opinion of a “duly qualified mental health professional” that the individual’s
previous condition “has a low probability of recurrence or exacerbation.” Adjudicative Guidelines at
¶ 29(c). Here, the DOE psychologist testified that the probability of relapse in the present case is
“moderate to high.” Under these circumstances, I cannot find that the concern in this case under
Criterion H has been resolved.
V. CONCLUSION
For the reasons set forth above, I conclude that the individual has not resolved the DOE’s security
concerns under Criteria H, J, and L. Therefore, the individual has not demonstrated that granting him
access authorization would not endanger the common defense and would be clearly consistent with
the national interest. Accordingly, I find that the DOE should not grant the individual a security
clearance at this time. Review of this decision by an Appeal Panel is available under the procedures
set forth at 10 C.F.R. § 710.28.
Steven J. Goering
Hearing Officer
Office of Hearings and Appeals
Date: April 19, 2013